MLB Reins In Podcasts Still Declares Blackouts A Moral Duty

Commissioner Selig once didn’t understand and was going to fix blackouts now he doesn’t call them blackouts. Today his organizations MLB/MLBAM decided some podcasts were a no-no too. (PHOTO: Robert Hanashiro/USA TODAY Staff)

Twitter exploded this morning when news came from Awful Announcing as well as other sources that MLB through its wholly owned subsidiary MLBAM is pressuring iTunes to remove some team-related podcasts from their library. The Awful  Announcing post specifically mentioned Gleeman and the Geek, Talk to Contact, Mets Musings, Bleacher Nation, It’s About the Yankees, Stupid, and the Rangers podcast by Ted Price on Dallas Sports Network.

Aaron Gemes tweeted other victims of MLB’s latest attempt at censorship.

Their attempted censorship – and make no mistake that is exactly what is happening – is however very selective so far. There are literally dozens of podcasts around that haven’t been shut down; although still early, who knows what’s coming next.

AA points out that MLBAM has done this before. In 2010, MLBAM issued a cease and desist notice to a podcast called CubsCast, demanding that they immediately stop using the Cubscast.com domain name.  They went on to demand the transfer of the domain name to MLBAM. That wasn’t enough for MLBAM, who later notified the owner not to use the name CubsCast period. Former host of the podcast Andrew Figgins, said they had to give in simply because MLBAM had money to fight in court and they did not.  Figgins tried to reason with MLBAM and offered to make concessions but MLBAM refused.

"Somewhere in the middle of this ordeal we discovered that a major league team besides the Cubs found one of our sister podcast websites. They weren’t happy with the lack of ownership they possessed, which seems to be the genesis of this ordeal. We offered to immediately shut that site down and transfer the domain to MLBAM, but our efforts weren’t good enough. MLBAM wanted everything, including Cubscast."

As noted on our sister site ‘Call to the Pen‘, while there may be a technical violation in a few cases, it makes little to no sense for MLB to do this.  Wether or not you understand that MLB and MLBAM care only for fans who are willing to dig deep into their wallets. Everything MLB does is directed at making money for the owners; it is a business after all.  It’s understandable when it comes to merchandise – it’s why a jersey that costs $25 to make, sells for $200.

Broadcast rights of official events and team logos, but it’s just stupidity when it comes to censoring free speech through economic pressure on iTunes.  If the podcast doesn’t use the team name or logo, and issues a disclaimer that it is not an official MLB sanctioned broadcast,  it’s simply  hard to understand what legal grounds they have for such demands. Since most of the podcasts like the late lamented CubsCast are nonprofit or show no profit they don’t have the resources to challenge MLB in the courts. If they can do this to podcasts, can blogs be far behind?

At about 2pm EDT: MLBAM woke up to the fact that they had tripped over it. They contacted Apple and tried to spin it by issueing this statement.

"As we have done in the past, yesterday we notified Apple about certain podcasts in the iTunes Store whose titles and/or thumbnails include infringing uses of trademarks of Major League Baseball and certain Clubs.  As we have done in the past, we asked Apple to have these trademarks removed from the podcast titles and thumbnails. Although we did not ask for, or seek to have any podcast’s removed from the store, it has come to our attention that Apple removed them.   Given our many years of experience in notifying Apple about trademark issues on the store, we trust that removing the podcasts was an oversight, and ask that you please look into this matter as soon as possible.Thank you for your cooperation."

The statement implies that Apple did this on their own .  As my daddy would have said, “horse apples!” That makes no sense at all. Apple is simply not going to do something like this unilaterally. They had been fielding complaints all morning and telling customers to call MLBAM/MLB. The MLB conglomerate got tired of trying to explain and simply dumped on Apple. Typical spin when they don’t have an acceptable answer and don’t want to say “we aren’t we making any money off of these.”  This is just another instance of MLB having no idea what they are doing and not giving a hoot about the result.

Let’s Talk Blackouts

As many of you will know, there is currently an ongoing legal proceeding questioning the legality of blackouts. That link goes to my first post on the case,  here is an update, and Jeff Passan’s latest on this archaic and inexplicable folly is here. In short; even though Commissioner Selig said eight years ago that he doesn’t understand it and wanted to fix it, nothing has happened.

"“I don’t understand (blackouts) myself.  I get blacked out from some games.” . . . Selig said he had spoken with Major League Baseball about addressing the blackout issue. “Right now,” he said, “I don’t know what to do about it. We’ll figure it out.”"

So we have blackouts based on this map drawn by someone smoking something really weird defining blackout areas.

On top of that MLB/MLBAM has no idea how to read that map. I base this on the way they’ve blacked out Braves games on their MLB Network. Last Sunday afternoon’s advertised game including the Braves (Braves vs. Giants) was blacked out here in Abilene, Texas and (according to one of my Twitter followers) in Montana as well. It shouldn’t be a shock  for me to say there is no local broadcast Braves or Giants games here, and gazing at my map none in Montana either. I wrote asking MLB Network why it was blacked out, but they have so far ignored my request for information. The downstream provider – Dish in my case – is simply complying with guidance from MLB. It’s quite clear that MLBAM and MLB Network have no idea who they are blacking out, and don’t care.

If an organization cannot follow its own guidelines it’s time to change those guidelines. Time to do away with this relic from the days of three networks and eight teams in each league. Like everything Commissioner Selig has done since he took office, this too is about the money.

MLB has enormous monetary incentive to prevent this malaise of regulation dismantled. The regional sports networks are shoveling money at teams for broadcast rights. These offers are nothing close to their value in a true free market with a-la-carte pricing for games. In search of the almighty dollar MLB is perfectly willing to step on the fans in the “very, very limited area” they say is affected. It is MLB’s contention that it is unreasonable to believe that it’s possible for fans all over to be able to watch any baseball game they want WITH announcers of their choice.  There’s something in that sentence that’s unreasonable alright, but being able to watch my favorite team wherever I am, isn’t it. We are paying MLBAM to do just that.

This brings us back to Garber.

In the Garber action, the judge denied a motion from MLB to dismiss. The league must realize it is in trouble because it’s trying to invoke its antitrust exemption and asking for a summary judgment before it goes to court. This has to be seen as panic and it may open the door for that exemption to be changed or revoked. According to Passan’s latest post blackouts are at the heart of MLB’s business.

"“. . .other court documents show a combative MLB insisting that its antiquated territorial-rights system – the same one that prevents the Oakland A’s from leaving their toilet-bowl stadium for greener pastures in Silicon Valley – is “the heart of the business” and “fundamental to MLB and its relationships with fans, sponsors, and communities nationwide.A pre-motion letter . . .argues that “every game is available for distribution to virtually every fan across America.”"

Well, not really. You may subscribe to MLB.TV provided that you are willing to have a computer dedicated to that, as I do. Or accept an up to 2 minute delay in the broadcast when using a ROKU box or similar device to stream the game. You can almost all of the time, providing you aren’t in an overlapping market like Iowa, Las Vegas and a few dozen other smaller ones, see your team play.

Remember what the Commissioner Selig said in 2006; “we’ll figure it out?” He’s now changed his mind. At last year’s All Star Game, he was asked about the blackouts. He said he thought the system was the best in sports, and nowadays he doesn’t even like to call them blackouts.

"“I don’t even like to use the term blackout,” Selig continued. “It’s in a very, very limited area, areas, and the fact is that my goal has always been to protect the local market and the local television carriers. …It’s just fair. Local clubs make local deals, and therefore, after all, they’ve made a deal, and it’s up to us, both morally as well as economically, to protect that deal.”"

Well of course he doesn’t like the term blackout, it sounds so much like a censorship.  Blackout is what the message on your screen says when they suddenly preempt a game. Maybe he should buy a thesaurus and find another less heavy handed term.

That’s A Wrap

The podcast issue like the blackout map is just plain silly. Podcasts allow fans to hear opinions other than those sanctioned and as a result restricted by MLB/MLBAM. The podcasts cost MLB nothing but more of a realistic view and that’s what gnaws at them the most. If they could change a few million a year, those podcasts wouldn’t have been touched. The blackouts do make them billions. When the commissioner says “it’s up to us, both morally as well as economically, to protect that deal” , it should be read as it’s up to us to get that money and we don’t care who or how many suffer as a result.

Baseball wields its antitrust exemption like a get out of jail free card. Whenever something they decided collides with common sense or rule of law they throw that card on the table defiantly.  All of this based on an antitrust exemption originally craft on the premise that baseball is NOT interstate commerce. That wasn’t true when it was created and it is less true now.

Whenever congress wants something they threaten repeal and MLB fall in line; remember the PED hearings? The Commissioner has done some good things for baseball but he’s also made some awful decisions based on lining the pockets of owners.

I expect and we’ve already seen the beginning of MLB backing off this podcast debacle. We can only hope that the Garber action results in abandoning or at least significantly weakening the idiotic blackout rules as well.