Eighth Circuit: Fantasy Baseball service need not pay for use of athletes’ names and statsOctober 16, 2007

In a decision today, the Eighth Circuit held that a provider of a fantasy baseball service did not need to pay either Major League Baseball or the Major League Baseball Players Association for the right to use the names and statistics of professional baseball players in connection with its service.

While this usage met the requirements of a right of publicity claim under Missouri law, the court held that the First Amendment trumped the right of publicity claim. This was a hotly-contested case, with the NFLPA, NFL Players, Inc., NBA, NHL, NASCAR, PGA, and WNBA providing amicus filings supporting Major League Baseball.

CBC operates a fantasy baseball service, where users "draft" various professional baseball players onto their "fantasy teams," and the users' success is based on the players' statistics with their respective actual teams. The players' names and statistics are therefore essential in order to operate a fantasy sports league.

From 1995 to 2004, CBC had a contract with the Major League Baseball Players Association to use the names and statistics of MLB players in connection with its fantasy baseball service. In 2004, however, Major League Baseball (MLB) decided to try to centralize all fantasy baseball through its website, and declined to offer licenses to use the players' names and statistics to other fantasy baseball companies. Based on MLB's refusal to license and its assertion that it would sue if CBC continued to use the players' names and statistics, CBC brought a declaratory judgment action seeking a declaration that its use did not violate any rights of MLB or the players.

The district court found for CBC, holding both that CBC's use did not meet the elements of a right of publicity claim, and also that such a claim was preempted by the First Amendment based on the facts. MLB and the Players Association appealed.

The Eighth Circuit affirmed. First, the court turned to whether the use met the elements of a right of publicity claim under Missouri law. The elements of such a claim are:

1. The defendant used the plaintiff's name as a symbol of his identity
2. Without the plaintiff's consent, and
3. With the intent to obtain a commercial advantage.

The court held that CBC's use did meet these three elements. It was undisputed there was no consent to use the names. Further, the names were being use as a "symbol" of the players' identities, and CBC was trying to obtain a commercial advantage, although not the same type of commercial advantage typically sought in a right of publicity case. As a result, the court disagreed with the district court's conclusion that the elements of a right of publicity claim were made out.

However, the Eighth Circuit agreed that the First Amendment prevented MLB and the Players Association from recovering in this case. The Supreme Court has previously held that individuals' rights of publicity must be balanced against the First Amendment. The court noted that the information used in CBC's games is in the public domain, "and it would be a strange law that a person would not have a first amendment right to use information that is available to everyone." The court also cited a California case in which MLB was defending its use of the players' names on MLB's website against a right of publicity claim by the Players Association, noting that "recitation and discussion of factual data concerning the athletic performance" of MLB players "command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection."

The court also noted that the typical interests sought to be protected by right of privacy claims are "barely, if at all" implicated in this case. These interests are "the right of an individual to reap the rewards of his or her endeavors and an individual's right to earn a living," along with "the desire to provide incentives to encourage a person's productive activities and to protect consumers from misleading advertising."

In this case, the baseball players are already "rewarded, and handsomely too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements." Also, there is little or no danger of consumers being misled that players endorse or sponsor CBC's fantasy baseball.

While the right of publicity has sometimes been read to include non-economic interests, the Eighth Circuit rejected this. Quoting a Tenth Circuit case, the court stated:

"Publicity rights . . . are meant to protect against the loss of financial gain, not mental anguish."

As a result, the First Amendment prevented the right of publicity claims in this case. After resolving a contractual issue relating to the previous agreement between the parties, the court affirmed the district court's decision.

To read the full decision in C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., click here.

Bloomberg provides this report on the case. Also, How Appealing has a compilation of media coverage of the district court decision here.

Update (11/27): MLB's petition for rehearing was denied yesterday.