Cue Brent Musberger: "You’re looking live at the Warren E. Burger Federal Building and United States Courthouse in St. Paul, Minnesota"

Thank you, Yahoo!, for allowing us to continue engaging in some lame sports metaphors and puns (and for the ability to use an exclamation point as a letter).   

The Internet company filed a complaint in the United States District Court for the District of Minnesota on June 1 against the National Football League Players Association, the National Football League and Players, Inc., seeking a Declaratory Judgment that: 

NFL Players may not seek to control the use of names, likenesses (including, without limitation, numbers), pictures, photographs, voices, facsimile signatures and/or biographical information of NFL players in connection with NFL fantasy games and may not continue to extract money for the use of this publicly available information. 

Sound familiar?  Yeah, this is an instant replay of the case we described a few weeks ago in which the same federal District Court in Minnesota ruled that CBS Interactive did not violate NFL players’ rights of publicity via its fantasy football game. 

The fact that the CBS Interactive, Inc. v. National Football League Players Association, Inc. and National Football League Players Incorporated case is entering overtime after the NFLPA, NFL and Players, inc. filed an appeal to the Eighth Circuit actually kicked off this latest pigskin classic.  

Yahoo! has been offering its fantasy football game for several years.  Until March 1, 2009, Yahoo! had licensing agreements with Players, inc. which allowed Yahoo! to use the likenesses of NFL players.  Yahoo! decided not to renew these agreements after that date (presumably for the same reason that CBS Interactive did not renew its agreements with Players, Inc.: because of the earlier ruling by the United States Court of Appeals that permission was not required to use Major League Baseball player likeness and information). 

Players, Inc. had threatened to sue Yahoo! when the licensing agreement was not renewed.  Emboldened by the CBS Interactive decision, Yahoo! went on the offensive in late May, asking Players, Inc. whether it had changed its tactics in light of Minnesota decision. Yahoo! received no response to a May 21 request for information.  Players, Inc. refused to reveal its playbook then, or when asked again on May 26.

Instead, Players, Inc. and the NFL Players Association filed a notice of appeal in the CBS Interactive case on May 28, 2009.  Yahoo! took this as a sign that Players Inc. and the NFLPA intended to protect their house.  It requested a conversation by June1 and, receiving no response, again filed its complaint in District Court. Specifically, Yahoo! makes seeks three declarations:

  1. Declaratory Judgment that Yahoo! does not violate any right of publicity owned or controlled by NFL players.
  2. Declaratory Judgment that a Right of Publicity interpreted broadly enough to encompass Yahoo!’s actions is superseded by the First Amendment to the United States Constitution.
  3. Declaratory Judgment that a Right of Publicity Interpreted Broadly Enough to Encompass Yahoo!’s actions are preempted by federal copyright law.

Given the earlier decisions in this District Court and the United States Court of Appeals, you really have to bet (not that we advocate betting on sports or law) on Yahoo! and on CBS Interactive in their respective cases. But one wonders whether the 2009-2010 Supreme Court schedule will feature a Publicity Rights Bowl in an attempt to settle this simmering rivalry.