By: Matthew Stark

Fantasy sports have emerged as an immensely popular means of supplementing fans’ enjoyment of sports. As the 2008 baseball season approaches, millions of fans are preparing to draft their fantasy baseball teams. The Fantasy Sports Trade Association estimates that 20 million people participate in fantasy sports in North America and that the market size of the industry is approximately $1.5 billion.ⁱ Some fantasy leagues, such as those operated by Yahoo! or ESPN, allow fans to play for free. However, many others charge a fee to join or to access additional features, such as expert analysis. The result is a highly lucrative industry.

To play fantasy baseball, users create customized teams by selecting players from the rosters of all thirty Major League Baseball (MLB) teams. Points are then awarded based on the individual performance of those players in such categories as home runs, batting average, and earned run average. Users compete against each other in leagues of approximately ten participants, and the winner is the team with the highest point total at the end of the season. Because fantasy baseball revolves around the individual performance of actual players during the course of the major league baseball season, the names, biographical data, and statistics of those players are indispensable. This information lies at the center of an ongoing intellectual property debate.

In CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., the United States Court of Appeals for the 8th Circuit recently addressed the issue of whether use of this information without a license violates the rights of publicity of major league baseball players.ⁱⁱ CBC sells fantasy sports services through its website.ⁱⁱⁱ CBC purchased a license from the MLB Players Association from 1995 to 2004 to use players’ names, biographical information, pictures, and statistics in its fantasy baseball services.^iv In 2005, the Players Association granted an exclusive license to Advanced Media to use players’ names and information.^v They did not offer CBC a license, and CBC brought the suit due to the apprehension that Advanced Media would sue them if they continued to offer fantasy baseball services with this information on their website.^vi

Advanced Media argued that use of the players’ names and statistical information in conjunction with fantasy baseball was a violation of the players’ right of publicity.^vii The elements of a right of publicity action are “(1) [t]hat defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.”^viii CBC argued that its use of the information did not violate the players’ right of publicity, and that even if the court concluded that it did, the First Amendment supersedes such a right.^ix While CBC acknowledged that it used the names without the players’ consent, the court held that the other two conditions had also been satisfied. In this case, the “name alone [was] sufficient to establish identity” and these identities were being used in CBC’s “fantasy baseball products for purposes of profit.” ^x

Although Advanced Media had established a valid cause of action for violation of the players’ rights of publicity, the court agreed with CBC’s argument that First Amendment considerations trump such a cause of action.^xi The court stated that because the information about the players’ performance in games is a form of speech and is readily available in the public domain, CBC has a right to use it.^xii It is speech that both entertains and informs, so the First Amendment protects it.^xiii The court also emphasized the significant public value of statistics and records to fans.^xiv Fans enjoy closely monitoring the progress of their favorite teams and players throughout the season, and the pursuit of breaking long-standing records garners particular interest. Limiting fans’ access to such information would significantly change the experience of watching sports.

In addition, players are largely unaffected by the use of their information in fantasy sports leagues. Use of statistics in fantasy baseball will not impair a player’s ability to earn a living, and the appearance of players’ names in the context of the game will not confuse consumers into believing that the players are endorsing CBC’s fantasy services.^xv Due to these important considerations, the Court of Appeals affirmed the district court’s grant of summary judgment for CBC.

A favorable decision for Advanced Media would have contributed to a dangerous slippery slope. Other professional sports leagues, such as the NFL and the NBA, would have likely followed MLB in bringing suit against fantasy sports leagues that do not possess an official license. Like MLB, the professional leagues would surely choose to become the sole providers of fantasy services, establishing a monopoly on the fantasy sports industry. The prohibition on using statistics in fantasy sports would also raise questions about the legality of publishing this information in newspapers and magazines. If the court had ignored CBC’s First Amendment argument, the media might eventually be proscribed from printing box scores or from running stories on teams and players without first obtaining a license. Sports television programs would be unable to show highlights and recaps from the previous day’s games without infringing on players’ rights of publicity. Such a ruling would blur the line between using a name for news purposes and using it for a commercial profit.

A ruling for the players would be disadvantageous to the sport as well. Fantasy sports generate interest in the actual game. Because participants in fantasy sports customize their teams to include players from around the league, they are much more likely to watch games or highlights that feature one of their players, even if their favorite team isn’t involved.^xvi Keeping the number of fantasy sports participants high will ultimately contribute to higher ratings. Fans might also buy jerseys or other merchandise because a particular player performed well for their fantasy team. The 8th Circuit’s decision allows fans to continue to enjoy an increasingly popular hobby, encourages the growth of a burgeoning industry, and helps maintain high levels of interest in the sport itself.

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ⁱ Fantasy Consumer Behavior Analyzed, FANTASY SPORTS TRADE ASSOCIATION, http://www.fsta.org/news/pressreleases/beasonpr.php.
ⁱⁱ CBC Distribution and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 820 (8th Cir. 2007).
ⁱⁱⁱ Id.
^iv Id. at 821.
^v Id.
^vi Id.
^vii Id. at 820.
^viii Doe v. TCI Cablevision, 110 S.W.3d 363, 369 (Mo. 2003).
^ix See Michael B. Cassidy, What’s in a Name? Examining the Rights to Players’ Names and Playing Records in Fantasy Sports, 10 NO. 7 JINTLAW 1, 8 (2007).
^x CBC, 505 F.3d at 822-23.
^xi Id. at 823.
^xii Id.
^xiii Id.
^xiv Id. at 823-24
^xv Id. at 824.
^xvi See Cassidy, supra note 9, at 11.