Judge Rules in Favor of Fantasy Baseball League

Today U.S. District Court Judge Mary Ann Medler ruled in a 49-page summary judgment that baseball and its players have no right of publicity to their names and playing records associated with statistics generated for fantasy baseball leagues. MLB, which paid the MLBPA $50 million for an exclusive right to license the stats for this purpose, claimed that CBC Distribution and Marketing Inc. (which runs CDM Fantasy Sports) violated the players' right of publicity by using their names in connection with the use of stats. Essentially, MLB is stepping into the shoes of the MLBPA via the license and asserting the claim that could otherwise be brought by the players.

According to Judge Medler, even if the players could claim the right of publicity to protect their names and information from commercial ventures by others, the First Amendment takes precedent because CBC is disseminating the same statistical information found in newspapers every day. Judge Medler also wrote: "The names and playing records of Major League baseball players as used in CBC's fantasy games are not copyrightable. Therefore, federal copyright law does not pre-empt the players' claimed right of publicity."

I disagree with Judge Medler's comment about the applicability of the First Amendment here because I think it's a stretch to say that fantasy sports leagues are serving any sort of newsworthy purpose. Fantasy sports leagues are basically games -- a form of entertainment. Some would even say it's akin to gambling. The issue from a right of publicity claim standpoint is simply, to what extent can third parties use the names and likenesses of athletes and entertainers, without consent, for their own commercial advantage?

So where do we draw the line on what constitutes "commercial advantage"? Obviously, newspapers are free to use the names. But if Nike were to use Tiger Woods without his consent, I presume nobody would question that Tiger would have a valid claim against Nike. What about baseball trading cards? Judge Medler's decision appears to be at odds with existing case precedent holding that Topps is not allowed to print and sell cards without the players' consent. How is the use of players' names and stats on trading cards any different from their use in fantasy leagues? Both companies are using the information for their own commercial advantage in a non-newsworthy context.

Posted in: