Major League Baseball v. Fantasy Sports

http://www.cnn.com/2006/US/01/15/baseball.stats.ap/

Expansion of personal proprietary rights (the exclusive right to commercially exploit one's name, image or likeness) is not appropriate in the context of fantasy sports. Companies that offer commercial fantasy sports products, like CDM, Rotoworld, CBS Sportsline, etc., have customarily, though reluctantly, acknowledged a players economic right to his statistics, and accordingly have been paying licensing fees to players associations like the MLBPA.

It hadn't been a problem because players associations need revenue to fund the organization and especially to build a war chest, so very few had been denied a license. MLBPA recently gave its marketing rights to Major League Baseball properties, who is now withholding licenses to fantasy games operators. A company named CBC is fighting MLB on this issue, claiming that statistics are news and in the public domain, free for all to use and exploit.

I have not read the briefs yet. It will be interesting to see which "right" of the players MLB is seeking to protect: trademark in the player's name, state laws relating to one's image and likeness, statistics as a league held commodity.

Those are some of the positive concerns. For me the normative concern, relates to monopoly. Copyrights and patent rights are a Constitutionally required monopoly. All other attemtps to monopolize should be highly suspect, as illustrated by section 2 of the Sherman Act, and violative of the goal toward perfect competition in the marketplace. Without the aid and now depsite the resistance of sports leagues, fantasy sports has become a multi-billion dollar industry, creating jobs and profit for many. There are even analogous fantasy competitions. I've recently come across a fantasy law professor game, where the participants get points for article citations (bonus points if cited by a court). Major League Baseball, on behalf of the players union, claims a right to have stifled these novel ideas and business long ago if it, or the players, had so chosen.

Funny how the greedy greedy players or their agents never sought to monopolize this industry. If MLB can prevent the granting of licenses, then fans can legally play the games only on MLB. MLB will not have the incentive to innovate or make it cheaper. Of course, Fantasy sports including baseball would still continue, illicitly, with otherwise lawabiding middle aged participants as criminals, not unlike their music-downloading teenage children.

Even if MLB holds this economic right, I don't believe Congress should allow them to control it absolutely. Like the compulsory licensing scheme in the music industry, fantasy operators should pay a statutorily set fee to rights holders. As an eligible free agent in the law professor game, I don't want to stop people from betting that my article's will make it into the Harvard Law Review, I just want to get paid if it does.

Andre Smith

UPDATE: For more on this topic, see this earlier post (1/3/06). -- ed.

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