On Friday, February 22, Major League Baseball Advanced Media, L.P. (“MLBAM”) and the Major League Baseball Players Association (“MLBPA”) filed a petition for a writ of certiorari to the U.S. Supreme Court (No. 07-1099), seeking to overturn the Eighth Circuit Court of Appeals’ ruling that the first amendment protects free use of baseball players’ names and statistics in fantasy sports games. MLBAM and the MLBPA both contend that the Eighth Circuit’s ruling fails to properly balance important concerns about state-law publicity rights against first amendment interests.

The original case, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., emerged from a change in MLBPA policy regarding the licensing of player names to fantasy sports businesses. The district-court plaintiff, C.B.C. Distribution and Marketing, Inc. (“CBC”), for over ten years had licensed directly from the MLBPA major league baseball player names for use in fantasy sports contests. Then, in 2005, the MLBPA decided not to renew CBC’s license—instead granting an exclusive right to use baseball players’ names to MLBAM “for exploitation via all interactive media.” MLBAM thereafter launched its own fantasy baseball contest on its website MLB.com and refused to grant a sublicense to CBC. This led CBC to file suit.

CBC originally filed suit in the District Court for the Eastern District of Missouri, which granted it summary judgment, holding that CBC’s fantasy games did not infringe on any state-law publicity rights that belonged to major league baseball players. The Eighth Circuit affirmed on other grounds, finding that while CBC was indeed infringing on major league baseball players’ publicity rights, CBC’s “first amendment rights in offering its fantasy baseball products supersedes the players’ rights of publicity.” The Eighth Circuit based its ruling on three factors: (1) fantasy baseball statistics are already in the public domain; (2) major league baseball players are already “rewarded, and handsomely;” and (3) there is no danger that any consumers would be misled into believing the use of players’ names represents a product endorsement.

Discussion picks up, after the jump.

Neither MLBAM nor CBC is the most sympathetic of parties. MLBAM is attempting to exploit the acquisition of its exclusive license over major league baseball players’ names to build dominant control over fantasy baseball. Meanwhile, CBC—operating under the trade name CDM Sports—sells entries into high-roller fantasy sports contests for fees sometimes ranging upwards of $1,000. The CDM Sports website performs limited informational purposes, making CDM Sports different from sites like Yahoo.com and ESPN.com that provide free fantasy baseball games incidental to their regular sports news coverage.

Nevertheless, this case produces an important legal question about the manner in which courts should strike the balance between enforcing state-law publicity rights and first amendment protections. On the one hand, athletes have extremely strong publicity rights that outweigh any first amendment interests regarding the unauthorized use of their names in sports-related board games and video games. It is for this reason that creators of the famous 1991 Nintendo game Tecmo Super Bowl had to refer to NFL players Jim Kelly, Randall Cunningham, and Bernie Kosar by generic nicknames: QB Bills, QB Eagles, and QB Browns, respectively (just as the more recent video game MVP Baseball 2004 had to replace Barry Bonds with a fictional player, John Dowd).

On the other hand, however, first amendment protection indubitably trumps publicity rights if a media source seeks to publish game recaps, box scores, and lists of statistical leaders. Professional athletes such as Kelly, Cunningham, Kosar and Bonds—although able to opt out of having their names appear in video games—may not opt out of having their statistical compilations appear in online newspaper reports.

Because fantasy sports games are in certain ways similar to board games and video games, but are in other ways similar to box score recompilations, it is arguable how to best balance between publicity rights and first amendment rights. Without question, this is an area where the law is muddled, and granting certiorari may serve some purpose.

P.S. If you’re interested in the intersection of sports and the law and based in New York, you might want to check out this upcoming event, Intellectual Property from Tee to Green – Applying the Art of Law to the Business of Golf. It’s part of the IP Surprise! series of lectures at New York Law School, where I’m on the faculty.

* * * * *
Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.