The Supreme Court was not expressing an opinion on the legal issue when it decided without comment to turn down the appeal by Major League Baseball.. But the action effectively ends the suit in which Major League Baseball and the Players Association joined forces against C.B.C. Distribution and Marketing, the parent of CDM Fantasy Sports of St. Louis.
Last October, the 8th U.S. Circuit Court of Appeals in St. Louis ruled that Major League Baseball and the Players Association can’t force the fantasy baseball company to pay for baseball stats and player identities.
Judge Morris Arnold agreed that baseball and the players had made out a “right of publicity” claim under Missouri law because the fantasy baseball company was using players’ identities without consent and for commercial advantage.
But Judge Arnold ruled that the First Amendment trumps the right of publicity. He pointed out that the names of players, biographical information and stats are available to everyone and added: "it would be strange law that a person would not have a first amendment right to use information that is available to everyone."
From 1995 to 2004, CBC licensed the names of and information about major league players from the Players Association. The license permitted CBC to use the names in connection with its fantasy baseball products. But in 2005, the Players Association gave the license to
Advanced Media, the interactive media and and Internet company of Major League Baseball. Advanced began providing fantasy baseball games on the official website of Major League Baseball, MLB.com. It offered CBC a license to promote the MLB.com fantasy baseball games on CBC's website but didn't offer a license to allow CBC to continure to offer its own fantasy baseball products. CBC went to court claiming it was about to be sued by MLB's Advanced Media and the court agreed.
The fight over the fantasy baseball information is part of a larger effort by sports leagues and even high school activities groups to monetize the game. Other leagues had joined MLB, including the National Football League Players Association, National Football League Players, Inc., NBA Properties, Inc., NHL Enterprises, L.P.: NFL Ventures, L.P.; National Association for Stock Car Auto Racing, Inc.; PGA TOUR, Inc.; WNBA Enterprises, LLC, and International Licensing Industry Merchandisers' Association, Inc.,
In its amicus brief to the Supreme Court, the other leagues wrote:
If left unreviewed, the Eighth
Circuit’s decision will threaten amici’s ability to license
players’ identities for commercial purposes. Businesses
such as respondent C.B.C. may be able to reap the
benefits of the labor, skills, and achievements of athletes
and other celebrated figures, with no return to the
individuals themselves. Amici also seek review of the
Eighth Circuit’s decision because it compromises their
ability to enforce existing agreements that authorize use
of an individual’s identity and related information for
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