FOLLOW US

The National Football League (NFL) and the National Retail Federation (NRF) have filed separate amicus briefs in support of the National Basketball Association's (NBA) petition to the U.S. Supreme Court, urging the Justices to overturn a Second Circuit ruling that revived a proposed class action under the Video Privacy Protection Act (VPPA). The NFL and NRF argue that the Second Circuit's decision extends the law beyond Congress’ original intent, potentially subjecting online content providers to significant liability without evidence of actual harm to consumers.

The case, National Basketball Association v. Michael Salazar, centers around the NBA's use of video viewing data shared with Meta for targeted advertising purposes. Salazar, the plaintiff, claims that this practice violated his privacy under the VPPA. A New York federal judge initially dismissed the suit, but the Second Circuit revived it, prompting the NBA to petition the Supreme Court for intervention.

In their briefs filed Friday, the NFL and NRF emphasize that the VPPA, written in 1988, was designed to protect consumer privacy regarding physical media transactions, specifically in the context of video rentals. The law, they argue, was not intended to address modern digital practices, including the use of data for targeted advertising by online platforms.

“The explosion of VPPA class actions presents a pressing issue for online content providers across the nation,” stated the NFL in its brief. “The decision below threatens such providers with massive liability unforeseen by Congress and incommensurate with any conceivable harm suffered by consumers.”

Both the NFL and NRF argue that allowing such lawsuits to proceed could flood the courts with baseless claims related to everyday digital advertising practices, which are critical to the free availability of much online content. They assert that no tangible harm occurs when consumer data is used for targeted marketing and that the courts should not regulate digital privacy in a way that contradicts the original intent of the VPPA.

As the case moves forward, both the NFL and NRF stress the importance of the Supreme Court’s intervention to prevent the law from being applied in ways that could disrupt online business operations and result in significant unintended consequences.

The NBA’s legal team is led by Shay Dvoretzky, Parker Rider-Longmaid, and Raza Rasheed of Skadden Arps Slate Meagher & Flom LLP. Salazar is represented by Joshua Hammack, Michael Murphy, and Brandon Wise of Bailey & Glasser LLP and Peiffer Wolf Carr Kane Conway & Wise LLP.

The case is National Basketball Association v. Michael Salazar, case number 24-994, in the U.S. Supreme Court.