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Legal Issues Related to Use of Drones in High School Sports

By Lee Green, J.D. on November 21, 2014 hst Print

Unmanned Aircraft Systems (UAS)

Thousands of small UAS – miniature drones that fly using tiny versions of the rotors used on helicopters – daily fill the U.S. skies as they are employed by their operators in a variety of endeavors typically involving some form of aerial photography. They are used by realtors to take overhead photographs or create promotional videos of property for sale. They are used by oil and gas enterprises to inspect industrial pipelines. They are used by farmers to survey fields and crops. They are used by vintners to monitor the microclimates and readiness for harvest of vineyards. They are used by national and state park personnel to spot wildfires, oversee wildlife migration patterns, and conduct search and rescue operations for lost hikers and injured climbers.

Projected future uses for small drones, pending technological refinements and regulatory approval, include package delivery to buyers’ homes by online retailers, pizza delivery to consumers’ doorsteps by restaurants, and express mail delivery to homes and workplaces by the U.S. Postal Service and private sector carriers.

Drones in Sports

The use of small UAS has also become widespread in athletics. In professional sports, they have been used to shoot overhead video of Association of Surfing Professionals competitions, World Snowboarding Association events, Professional Golf Association courses and tournament play, X Games extreme sports competitions, U.S. Polo Association matches, Formula One and NASCAR auto races, Pro Motocross events, and Professional Rodeo Cowboys Association championships.

In amateur athletics, in the newest trend involving the use of small drones, they are being used to film college and high school practices and games from overhead vantage points to supplement traditional video shot at a distance and at often-awkward angles from the sidelines, press boxes or a scissors-lift towers. Although cable-suspended camera systems have been widely used in stadiums as part of the broadcast of professional and NCAA Division I college football games since the mid-1990s, the use of small UAS offers an option for overhead filming on any practice field and for directly-above-the-action videotaping of games by small colleges and high schools lacking fixed cable-cam systems in their stadiums. 

Several college football teams are using small drone technology because of the benefits it provides in game and practice film breakdown sessions with players. At the 2014 Pacific-12 Conference College Football Preseason Media Day, UCLA head coach Jim Mora commented on the advantages of using a UAS to film practices. 

“You get a view of the field that you just can’t get from cameras on the ground – hand placement, foot placement, spacing,” Mora said. “When [the drone] hovers above the line of scrimmage, you get a real clear perspective of spacing between your offensive lineman and differences in the depth of the rush lanes of your defensive linemen. It allows players to see when they’re out of position and where they need to be in different schemes.” 

In March 2014, at South by Southwest (SxSW) – a series of interactive, film and music festivals held annually in Austin, Texas – a panel titled The Sky’s the Limit was offered as part of SxSports, a new track of programming introduced this year. The session featured Ryan Baker, the founder and CEO of Arch Aerial, a Houston-based UAS manufacturer, who discussed the use of small drones in sports, including high school football programs using his firm’s technology in Texas, Louisiana, Florida, California, Washington and Idaho.

Baker explained that the typical UAS employed by a high school athletics department is a quadcopter – a small (less than three pounds), four-rotor microcoptor on the underside of which is mounted a GoPro camera which records HD video on an SD card and supports live streaming of video to cell phones or tablets so that coaches can watch practice simultaneously from their vantage point on the ground and from the directly-overhead perspective provided by the drone.

Baker also commented that such mini-drones are flown using remote control consoles and are powered by rechargeable, lithium polymer batteries that provide approximately 15 minutes of flying time and are easily removable so that they may be instantly swapped out in order to keep the UAS in the air throughout a practice or game. Many of the small drones also include GPS-guided autonomous functionality – technology that ensures that the UAS will maintain its altitude and avoid dropping from the sky even if the operator lets go of the controls.

A review of the product catalogs of small UAS manufacturers – including Arch Aerial, 3D Robotics, DJI, Quadhangar, Skybotix, Walkera, Parrot and Blade – reveals that quadcopter kits, including cameras, accessories and extra batteries, generally cost between $750 and $2,000 and that most of the sellers also offer some form of “flight training” for the athletics personnel who will operate the drones during practices or games (typically an assistant coach or video coordinator or student manager).

Paul Peterson, head football coach at Eagle (Idaho) High School, this year for the first time using a quadcopter to film practices and games, stated that “from the first time coaches and players saw footage from the vantage point of the drone, they were hooked on the device. Compared to the ground level video angles we were used to seeing from the 50-yard line or the goal line, I think players get a much better feel for what they need to do and where they need to be on the field with [the drone].” 

Kevin Plew, the team’s video coordinator, said “On game night, it’s also great for capturing shots for our highlight DVD. We don’t fly it directly over the field or the crowd in the stands during games, and we keep it over our sideline or high above the end of the field so that the other team’s coaches won’t think we are spying on them.”

Camas (Washington) High School defensive coordinator Dan Kielty is similarly impressed with the benefits of drone aerial photography. “It gives you a great angle,” Kielty said. “You can see everybody on the field and their spacing. Once I saw the overhead video for the first time and what it could do and how simple the technology is, I was on board. It’s going to help us dramatically.”

Austin (Texas) Westlake High School head coach Todd Dodge commented on the benefits of the overhead vantage point provided by drone photography with regard to coaching proper techniques for players. 

“Unsafe maneuvers by players that might have been obscured from sideline cameras really jump out on video shot from directly overhead and allow us to coach players more effectively to avoid dangerous techniques that might result in injury to themselves or to other players,” Dodge said. 

In a unique use of small UAS technology in sports – arguably the greatest use yet conceived of – a photograph widely circulated on social media in early September 2014 showed a booster club-sponsored, cookout-fundraiser at a high school football game in Boise, Idaho during which a drone was being used to deliver Styrofoam food containers of barbecue to fans in the crowd (given that no liquid could be seen dripping from the hinged edges of the containers during flight, it must be assumed that the barbecue was dry rub, not sauce-covered).

Legal Issues

The primary issue for high school sports programs regarding the use of small drones is whether the practice is legal – permissible under Federal Aviation Administration (FAA) rules, under applicable state privacy laws and under legal mandates related to tort liability in case someone on the ground is injured by a malfunctioning UAS that falls from the sky.

FAA rules establish three classifications of UAS operations: 1) Public UAS in which a government entity such as a law enforcement agency, a fire department, a border patrol agency, a disaster relief operation, or a search and rescue organization may obtain a Certificate of Authorization (COA) to use a drone; 2) Civil UAS in which a commercial entity may obtain a Special Airworthiness Certificate (SAC) to use a drone for business purposes; and 3) Model Aircraft in which the use of an UAS is permitted for recreational purposes if certain criteria are satisfied by the operator of a drone. The key issue regarding the use of drones by high school sports teams is whether the use of small UAS fit into the FAA’s Model Aircraft classification.

In June 2014, the FAA issued a policy guidance, Interpretation of the Special Rules for Model Aircraft, to clarify the regulations that were set forth in the FAA Modernization and Reform Act of 2012 and in Advisory Circular 91-57 of 1981, a document that has for more than three decades governed Model Aircraft Operating Standards (all three of these publications are available full-text at www.faa.gov). The criteria for a drone to be classified as a Model Aircraft is that it must:

• limit its altitude to less than 400 feet above the ground;

• be flown strictly for hobby or recreational use;

• be operated using specified FAA safety guidelines;

• weigh not more than 55 pounds;

• be operated in a manner that would not interfere with any manned aircraft (making drone use illegal in Class B airspace which is that over major urban areas near the nation’s busiest airports); and

• provide notification to the airport operator and the airport air traffic control tower of any planned use of a UAS within five miles of any airport.

The major ambiguity in these rules is that the FAA’s definition of “for hobby or recreational use” is highly vague and gives insufficient guidance as to whether the operation of a drone for filming school sports activities is considered to be a commercial use or a recreational use of the technology. A ruling on March 6, 2014 by the National Transportation Safety Board (NTSB), which acts as a defacto appellate court to review fines levied by the FAA, might be interpreted to support the position that the use of drones by school sports programs is “recreational use.” The case, FAA v. Pirker, involved an appeal of a $10,000 fine levied by the FAA against the operator of a drone filming promotional footage for the University of Virginia over its campus. The NTSB concluded that the FAA lacked the authority to levy the fine because the drone was a Model Aircraft as defined by the FAA and the operator had satisfied all of the operating standards set forth above for such an UAS.

Congress has directed the FAA to clarify the rules governing UAS by September 30, 2015 and the safest course of action for school districts might be to delay the acquisition of drones for use by their athletics departments until those guidelines become available next year.

In addition to the federal regulatory framework for small drones, schools should consult any applicable state laws regulating UAS, most of which address the privacy implications of aerial image-capturing. For example, the Texas Privacy Act (Texas House Bill 912), signed into law on May 28, 2013 and effective as of September 1, 2013, prohibits the use of drone photography without the express consent of the person who lawfully occupies or owns the real property captured in the photos or video being shot. The Texas law is typical of most state statutes governing drones in that it is intended to prevent surreptitious photography of persons on their private property, inside buildings or inside homes.

Finally, schools should exercise a high degree of care in the operation of drones to avoid common law tort liability for injuries to players, coaches, spectators or other third parties that might result from a drone crashing into a crowd. Operators should be provided by schools with the “flight training” offered by UAS sellers, should be required to practice extensively to ensure proficiency in using the technology, should avoid flying the drones directly over or close to crowds at games, and should strictly refrain from any sort of horseplay or tomfoolery while operating UAS.