Sports, Technology and Law: Do Leagues Own Statistics?

The intersection of sports and technology has raised a number of legal issues. The first is: who owns player statistics? Now that fantasy sports has become a $1 billion a year industry, not surprisingly, the leagues are attempting to keep it to themselves. Major League Baseball, through its Advanced Media division, requires fantasy sports operators to obtain a license to use player statistics in their operations. Now, one such company, CDM Fantasy Sports, has sued for a declaratory injunction that the statistics can be used without MLB's permission.

MLB's in-house counsel has not commented and a senior official, who appears to not know the law, said this:

"Player statistics are in the public domain. We've never disputed that," Gallagher said. "But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain."

This flies in the face of settled legal precedent. In 1997, the Second Circuit ruled in NBA v. Motorola that the NBA does not have a legal right to prevent another party from repeating facts learned from its broadcasts. Motorola charged for its service and provided updates in real-time. Last year, the Eleventh Circuit ruled in Morris Communications v. PGA Tour that selling compiled real-time golf scores does not raise a copyright issue. Under an antitrust analysis, the court ruled the scores are a product, which the PGA Tour has no right to control.

Baseball's best argument is that even if the statistics themselves are not copyrightable, the method for compiling the statistics is. Baseball may draw support for this argument from Matthews Bender v. West Publishing, the case that held West's "star-pagination" system of publishing judicial opinions (which themselves, as a government publication, are not copyrightable) to be protected by copyright law. It is unclear what novel method baseball uses to compile its statistics, though, and courts may be very reluctant to extend the holding of West much beyond its facts.

Thus, it seems to me that baseball will lose this claim. Statistics are facts, nothing more, and can be disseminated as freely as can news stories. It is unclear how extending copyright to statistics would not also impact newspapers, television stations and commercial websites that also report baseball statistics. Baseball's methods for "compiling" these statistics consists of the advanced mathematical functions of addition and averaging.

Thus, while professional sports leagues can still control its trademarks, hopefully it will soon be shown that they cannot also control use of its players' statistics.

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