The NBA has petitioned the U.S. Supreme Court to review Salazar v. NBA, a case where the league is accused of violating the federal Video Privacy Protection Act (VPPA) by a user whose data was shared when he was watching free videos on NBA.com while logged into his Facebook account. If the Supreme Court takes the case, Salazar v. NBA will have profound implications not only for sports leagues that publish video content but also for the internet economy at large.
The NBA’s petition for a writ of certiorari, filed on Friday, March 14, is authored by attorneys Shay Dvoretzky, Parker Rider-Longmaid and Raza Rasheed of Skadden Arps. In October 2024, the U.S. Court of Appeals for the Second Circuit sided against the NBA. Judge Beth Robinson, writing on behalf of herself and fellow Second Circuit Judges Reena Raggi and Eunice Lee, vacated U.S. District Judge Jennifer L. Rochon’s dismissal of the case and sent it back to the trial court for further proceedings. In January the NBA motioned to dismiss the case.
The U.S. Supreme Court only agrees to review about 1% of petitions. The league thus faces challenging odds in convincing at least four justices—the minimum required for the Court to vote to grant cert—to take a closer look.
The NBA argues the Second Circuit’s ruling conflicts with those in other federal circuits and thus spawns a so-called “circuit split.” That means appellate courts in different parts of the country have reached conflicting interpretations of the same legal question. Circuit splits, which can lead to confusion for businesses and consumers, can also contribute to unpredictable and inequitable results, with different case outcomes based on which federal circuit the case is litigated.
The league contends Michael Salazar should not have standing to sue. A few years ago, Salazar, who signed up for a free online newsletter published by the NBA, watched videos on NBA.com. He did so while logged into his Facebook account. Salazar’s viewing history was transmitted to Meta via a Facebook cookie and his internet browser; Facebook uses that type of data for targeted ads. There is no allegation that Meta (or the NBA or anyone else) disclosed Salazar’s viewing history and other info to the public. That point didn’t sway the Second Circuit, which underscored how the NBA “receives financial remuneration from this arrangement.”
The NBA insists this sequence of events does not provide for a viable claim under U.S. law. The sequence reflects one business disclosing personal information to another without any disclosure to the public. The league maintains the U.S. Courts of Appeal for the Third, Seventh, Tenth and Eleventh Circuits have held that consumers in analogous situations to Salazar suffered no concrete harm when the transmission was non-public. As the league describes it, the Second Circuit has contrastingly held “consumers are always concretely harmed whenever a business discloses any information about them to anyone without their prior authorization.”
Another alleged problem in the Second Circuit’s reasoning is how it construed the scope of the VPAA. Signed into law by President Ronald Reagan in 1988, the VPAA was a response to a newspaper leaking the video rental history of Judge Robert Bork while he was a nominee for the U.S. Supreme Court. The leaking was intended to embarrass Bork, whose nomination was ultimately rejected by the U.S. Senate albeit for reasons unrelated to his rental list. The VPAA prohibits videotape service providers—whom the statute defines as persons or businesses engaged in the rental, sale or delivery “of prerecorded video cassette tapes or similar audiovisual materials”—from knowingly disclosing consumers’ information.
The NBA insists the Second Circuit erred by finding the VPAA applicable to Salazar, who subscribed to the NBA’s free email newsletter but not to any NBA audiovisual goods or services. The Second Circuit, as the NBA sees it, has extended the VPAA’s scope to those who watched audiovisual content “without renting, buying or subscribing to it.” The league cites cases that conflict with such an expansive interpretation.
The political objectives of the VPAA are also highlighted by the NBA. “Congress,” the NBA writes, “intended to protect consumers like Judge Bork from having their video histories leaked to the public, not consumers, like Salazar, who watched a few free videos online.” Similarly, the league adds, the VPAA “was not meant to cover people who watch free basketball highlights on a public-facing website.”
The broader implications of Salazar v. NBA should also warrant the Court’s attention, the NBA writes. While the underlying facts may seem unimportant and mundane—a random person watching a video on NBA.com and a cookie transmitting some data for Facebook ads—the NBA urges the Court to play out the Second Circuit’s reasoning. As the NBA sees it, the Second Circuit’s interpretation means the VPAA protects “anyone who purchases anything from any business that puts out any video content, even free content on a public website.” This framework, the league contends, “could effectively destroy” ordinary internet practices that enable “countless websites to offer audiovisual content that is both consumer-friendly and free.”
In that same vein, the NBA details how “countless websites” offer free video content to consumers, and that data collected through viewing these websites “is essential to the modern internet economy.” The data helps businesses craft marketing and advertising policies and provides insights on ad rates and website improvements.