Fantasy Ball and The Law

Do you play? If you don’t, you likely know someone who does. Fantasy sports are big business. Millions of big league fans flock to Internet websites each season to try their luck at managing theoretical teams of all-stars. Of course, use of the players’ names and statistics is key to the fantasy leagues. But who owns the rights to that information?

Several years ago, former players sued Major League Baseball, arguing that they owned their performance statistics. MLB argued that such information was historical fact that should be free to the public. Given that pro baseball is followed by millions, and that the public has an enduring fascination with records set by its players, the court in the prior case denied the players’ claim, concluding that their statistics are integral to the public’s full understanding and enjoyment of the game.

Times change, but apparently baseball players don’t. Players again recently fought over the rights to their performance statistics—this time for use in fantasy baseball. In 2005, the MLB Players’ Association entered into an exclusive license with MLB Advanced Media for the rights to the ball players’ names and stats for use in interactive media. Wanting to keep its share of the fantasy sports business, the company that previously licensed performance stats from the Association, CBC Distribution and Marketing, took offense to this change.

The Association argued that CBC’s intention to use players’ names, likeness and stats without authorization would violate players’ “right of publicity”—to control and profit from the commercial use of one’s name and persona. An appellate court ruled in October that CBC’s planned use of the stats in fantasy baseball did violate the this right of publicity. But that call did not end the game.

CBC argued that the First Amendment’s free speech guarantee protected its right to use player information, and the court agreed, finding that the ability to discuss data relating to players’ performance is a public interest that is constitutionally protected. Also important to the court’s decision was the fact that professional players are rewarded “handsomely” for their play and endorsements, making the violation of their right of publicity relatively insignificant. The court concluded that the interests protected by the First Amendment outweighed the players’ right of publicity, so CBC got to use players’ names, nicknames, likenesses, signatures, pictures and records.