Have you been searching for more-affordable fantasy sports games? If so, thanks to the Supreme Court’s hands-off approach to the conflict between player publicity rights and First Amendment rights, unlicensed parties may now have a better chance to legally enter the fantasy sports gaming market.

Since the creation of fantasy sports games in the early 1980s, one of the main barriers to entry has involved purchasing the right to use players’ names and statistics. On Tuesday, however, the Supreme Court denied Major League Baseball’s petition for certiorari in C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P. (previously blogged about here). As a result of the cert denial, fantasy sports websites are now more likely allowed to use baseball players’ names and statistics without obtaining any type of license.

Discussion resumes below the fold.

This particular dispute about player licensing rights first emerged back in 2005, when the MLBPA changed its licensing practices for all fantasy games. Until that time, the MLBPA had licensed the right to use players’ names and statistics to any company that was willing to pay the required licensing fee. Under the old policy, CBC had paid an annual fee to the MLBPA, as had all of its fantasy gaming competitors.

Then, in 2005, the MLBPA moved to a far more restrictive policy that granted an exclusive license to use baseball players’ names and statistics to Major League Baseball Advanced Media (“MLBAM”) — the marketing arm for all thirty Major League Baseball clubs. Pursuant to the terms of this license, MLBAM enjoyed the exclusive right to sublicense the use of players’ names and statistics to third parties; however, MLBAM did not have to do so. This led to a fear amongst some fantasy sports aficionados that MLBAM would eventually choose to deny licenses to all of the major fantasy sports games and thereby obtain a complete monopoly for themselves in the fantasy gaming market. This indeed would have raised the costs for fantasy gaming, as well as created an interesting question under antitrust law.

From 2005 to 2008, MLBAM did not substantially restrict the number of fantasy sports games as some had anticipated. But MLBAM still denied a sublicense to one particular competitor, CBC. Rather than ceasing its operations, CBC instead filed suit, seeking a declaratory judgment that it did not need a license to legally host fantasy games.

The Eastern District of Missouri initially granted summary judgment to CBC, finding that under Missouri law no license was required to host fantasy sports games. Then, in October 2007, the Eighth Circuit Court of Appeals affirmed on other grounds, holding that while unauthorized use of baseball players’ names and likeness may violate players’ common law publicity rights, separate First Amendment considerations trump these common-law publicity rights. The Eighth Circuit found CBC to have a superior First Amendment interest for three reasons: (1) fantasy baseball statistics are already in the public domain; (2) baseball players are already highly compensated; and (3) there is no danger that consumers would be misled into believing use of player names signaled a product endorsement.

At the time of the Eighth Circuit’s ruling, at least two professors at Sports Law Blog seemed to believe the Supreme Court would grant certiorari in this matter (see here and here). On Tuesday, however, the Court maintained its thirty year trend of rejecting all cases involving the conflict between publicity rights and the First Amendment. As a result, for now the law seems to permit marketing of unlicensed fantasy sports contests, although another circuit could potentially disagree.

MLBAM will likely seek to challenge this issue again in a different circuit; however, another ruling could take years.

P.S. Keeping with our recent theme of discussing accommodations for disabled athletes, Deadspin on Tuesday profiled Adam Bender, an eight-year-old Little Leaguer who plays baseball despite having just one leg. Unlike track star Oscar Pistorius, who wears artificial legs, Bender chooses to hop on one leg to first base , then uses crutches the rest of the way around the bases. For those bothered by the recent accommodations made for Pistorius, I am curious about your thoughts about Bender’s accommodation.

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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.