Start getting those brooms out, we’re headed for a sweep, I think: This week the United States Court of Appeals for the Eighth Circuit held that baseball players – and their licensee, MLB Advanced Media – do not have the right to prohibit the use of their names and other factual information in connection with fantasy sports games. This is the 2nd time that a sports league has lost this matchup, with the National Basketball Association having been on the receiving end of a similar scoreline against Motorola in a case ten years ago.
This case, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., saw intervention by heavy hitters in both camps. The Major League Baseball Players Association intervened in the case to protect the players’ rights. Their side was supported by virtually every major sports league. Meanwhile, C.B.C. was supported by the Fantasy Sports Trade Association and other online database companies that saw the importance of a decision that might overturn years of precedent allowing for free use of factual information.
In essence, this case, as are most cases, was all about money. CBC had for years licensed from the MLB Players Association the use of player names and information for use by fantasy baseball players. When their latest agreement with the MLB Players Association expired in 2002, CBC decided not to renew. The Players Association then allowed MLB Advanced Media to have the exclusive right to use this information "for use in exploitation of all interactive media." Thus, Major League Baseball would now control both the real thing and its fantasy counterpart. MLB Advanced Media did offer CBC the right to promote MLB Advanced Media’s fantasy games on its website, but CBC declined and went to court seeking a declaratory judgment against MLB Advanced Media on the basis that it had "a reasonable apprehension: of being sued if it continued to host its own fantasy games.
Perhaps because the NBA had been so convincingly rejected in claiming that it held intellectual property rights in player names and statistics in the Motorola case, MLB Advanced Media based it’s claim squarely on the Missouri Right of Publicity statute. The United States Court of Appeals for the Eastern District of Missouri knocked that pitch out of the park, holding that CBC and other fantasy leagues did not utilize the names for any commercial purpose as required by the statute and further holding that the First Amendment justified this use in any regard.
MLB Advanced Media kept playing, though, and appealed the case. Though it reached an opposite result on the issue of whether use of player information was a commercial one – finding that CBC is attempting to gain a commercial advantage (probably the right interpretation because, let’s face it, fantasy sports are the last vestige of "legal" gambling over the Internet in this country and a billion dollar a year industry) – the Court of Appeals nonetheless found that the First Amendment protects against excluding fantasy leagues from using this information (also the right interpretation because, let’s face it, there’s no way that this court was going to issue a ruling that would kill the fantasy sports industry). A key holding in the court harkens back to the NBA case – the information about used in the fantasy baseball games is already in the public domain; there is nothing contained in these statistics that couldn’t be compiled by anyone who simply watched the games live or on TV. As the Court of Appeals stated, "it would be strange law that a person would not have a First Amendment right to use information that is available to everyone."
The Court of Appeals also made clear that baseball’s popularity – the very reason that the player’s names were valuable in the first place – was the reason that this information should belong to the public, not MLB. Furthermore, the Court of Appeals took stock of the fact that baseball players do alright financially. Their fat salaries and endorsement income won’t be affected if they don’t get this bit of extra income from fantasy players. Finally, the Court of Appeals tried to apply some ice to the players’ bruised egos by stating that there is really no right under state publicity statutes that allows for compensation of any claimed emotional harm on the players’ behalf that might result from their feeling "used" by the fantasy games. The Right of Publicity only protects against actual financial loss.
So what’s the overarching legal interest? Well, I suppose there’s the nice reaffirmation of the First Amendment right to use purely factual material even for financial gain, which will certainly please newspapers, television and radio station that routinely use this type of information for contests relating to sporting and entertainment events (though stations still must be aware of trademark infringement issues that might arise from unauthorized use of team or league names). But mostly, it’s just a very timely decision, with the World Series starting next week, and an interesting read, even for a baseball-adverse soccer fan (who is therefore thrilled by the applications this decision will also have in his English Premier League soccer fantasy game).
