Judge Sides With Fantasy League in MLB Statistics Case

In a case closely watched by the sports industry and operators of online fantasy leagues, a St. Louis federal judge ruled Tuesday that Major League Baseball does not own its players' profiles and statistics, and the unauthorized use of this information does not violate the players' right of publicity.

CBC, owner of the CDM Fantasy Sports brand of Internet-based fantasy sports leagues, sued Major League Baseball Advanced Media last year for a declaratory judgment after it was denied a new licensing deal for player information by the Major League Baseball Players Association.

MLB Advanced Media, baseball's interactive division, filed a counterclaim along with the players' association alleging CBC violated the players' right of publicity based on the "exploitation" of the players on CBC's Web sites, which include player names, nicknames, likenesses, signatures, jerseys, pictures, playing records and biographical information.

In the 49-page summary judgment opinion, U.S. District Court Judge Mary Ann Medler determined that CBC does not violate the players' right of publicity because the information does not constitute a symbol of the players' identity; does not give CBC a commercial advantage; and CBC's use does not contravene the public policy behind the right of publicity.

"As such, CBC's mere use of Major League baseball players' names in conjunction with their playing records does not establish a violation of the players' right of publicity," Medler wrote. "CBC's use of the baseball players' names and playing records in the circumstances of this case, moreover, does not involve the character, personality, reputation or physical appearance of the players; it simply involves historical facts about the baseball players such as their batting averages, homes runs, doubles, triples etc.

"CBC's use of players' names in conjunction with their playing records, therefore, does not involve the persona or identity of any player," she concluded.

Medler further concluded that even if a player could successfully claim his likeness was being exploited by the fantasy league games, CBC is protected by the First Amendment because the same information is routinely disseminated by televised games, newspapers and other statistics providers.

MLB Advanced Media had argued that it owned an intellectual property interest in the statistics, and the First Amendment did not apply because CBC's online games do not involve speech or the expression of ideas.

Medler rejected that theory, finding that CBC's Web sites encourage participants to learn about the players' records and provide an education in baseball through the dissemination of historical fact.

"Indeed, CBC's fantasy baseball games entertain participants based upon baseball history," Medler wrote. "The fact that CBC derives a profit from its games does not preclude use of the players' names and playing records from being protected speech under the First Amendment."

Medler ordered MLB Advanced Media and the players' association to refrain from interfering with CBC's fantasy games.

The case has been monitored by other fantasy sports league providers such as Yahoo! and ESPN.com. Online fantasy sports now constitute a billion-dollar industry, with between 15 and 18 million unique players participating every year in fantasy baseball or football, according to the Fantasy Sports Trade Association. Players select an imaginary team and manage their players' performance based on real-life statistics, competing against other managers.

Representing CBC are Molly Edwards, Rudolph Telscher Jr., Kara Yancey and Douglas Wilner of St. Louis' Harness Dickey & Pierce.

Representing MLB Advance Media are Michael Aprahamian and Patrick Kuhlmann of Foley & Lardner in Milwaukee and Jeffrey Kass and Jay Summerville of St. Louis' Armstrong Teasdale.

The players' association was represented by Monica Fanning, Karen Glickstein, Russell Jones Jr. and Travis Salmon of Shughart Thomson & Kilroy in Kansas City; Steven Fehr and Donald Aubry of St. Louis' Jolley Walsh Hurley & Raisher; and Virginia Seitz of the Washington D.C. office of Sidley Austin Brown & Wood.

The case is CBC Distribution and Marketing v. Major League Baseball Advanced Media, 05cv00252.