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The CDM Fantasy Sports Stats Case on Appeal ---Will Major League Baseball and the Players Association Lose Claim To Continue their Right To License Use of Players’ Names and “Stats”? On October 16, 2007, the U.S. Court of Appeals in St. Louis affirmed the summary judgment of the district court issued August 8, 2006, in favor of the online fantasy sports operator, C.B.C. Distribution & Marketing, Inc. (“CBC,” also known online as “CDM Fantasy Sports”). By a 2-to-1 vote of a three-judge panel, the appellate court granted CBC the right to use major league baseball (MLB) players’ names and playing records (“stats”) as part of CBC’s for-profit fantasy games without a license from and payment of licensing fees to MLB players. Curiously, there have been no prominent news articles or other publicity or any press releases by either side, as had taken place in 2005 and 2006 before and after the district court decision. This decision is a significant legal victory for CBC and against the MLB Players Association (MLBPA) and MLB’s licensing organization for online interactive media (MLBAM, which operates MLB.com). (MLBAM had paid the Players Association $50 million in late 2004 for an assignment of these rights granted by almost all member-players. Nevertheless, the Players Association intervened in CBC’s legal action in order that it could pursue its own claims against CBC.) Although the appellate decision in every respect but one either repudiated or abandoned the district court’s reasoning, it affirmed the district court’s final summary judgment and injunctive relief granted CBC. The majority and dissenting opinions facilitate, however, the MLB parties’ ability to seek further review by the eleven regular judges of the 8th Circuit and ultimately the U.S. Supreme Court under its discretionary review process. Assuming CBC prevails in any further review proceedings and the 8th Circuit decision stands, which is more likely than not when a federal court of appeals issues a decision, this case will have significant precedential effect in depriving professional sports and entertainment figures of any right to deny or limit or obtain substantial licensing fees for use of their names and identities for a broad range of methods of commercial exploitation. . . . [Omitting body of article and footnotes and resuming with conclusions.] If the Eighth Circuit decision is sustained as to CBC’s First Amendment right of “free speech” in using MLB players’ names and other forms of identity and playing record “stats” for profit without their consents, as being “in the public domain,” there is no valid distinction I can see under this view of the First Amendment for precluding use of players’ pictures with their names and other vital stats as published and sold by Topps and other trading card vendors. After alluding to Michael Eisner’s recent purchase of Topps, . . ., if the name of Mickey Mantle is “in the public domain,” and is available under the First Amendment for use by any enterprise eager to trade on the “news and entertainment value” of his identity in order to enhance its own products or services, superseding the states’ “right of privacy” laws, why is not the name and picture of Mickey Mouse also subject to such uses, with the First Amendment also “trumping” rights created under federal copyright and trademark laws? Therefore, in answering the question posed in the heading of this article and in the final analysis, weighing all considerations, I would anticipate that the 8th Circuit or three-judge panel will grant rehearing, en banc or by the panel alone, on MLBPA’s contract claim, thus mooting the right of publicity claim and First Amendment defenses, granting, however, a partial victory to the MLB parties and the players whose right to obtain revenues for the commercial use of their names is jeopardized by the current decision.  Read the entire article here in PDF
November 18, 2007 Copyright, Lawrence W. Boes, 2007
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