Federal Court Determines First Amendment Protects Commercial Use of Baseball Player's Names, Statistics
October 2, 2006
David C. Borucke- Tampa
Sports fans and First Amendment enthusiasts both have reason to cheer the recent decision in C.B.C. Distributing and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. In this groundbreaking case, a federal district court in Missouri determined that the operator of a fantasy baseball league, which uses the names and statistics of Major League Baseball players, does not violate the players’ right of publicity because it did not exploit the players’ identities for a commercial advantage. Moreover, the court determined that the First Amendment trumps any publicity rights that the players might enjoy.
CBC is in the business of owning and operating a “fantasy baseball league” sold via the Internet and other media. Participants compete by creating fictitious baseball teams comprised of actual, professional players. A player’s value to a team is determined by his performance during the Major League Baseball season, as captured by statistics such as batting average and runs scored. In short, the use of player names and statistics is essential to the operation of a fantasy sports league, which is now a multimillion dollar business.
To use this essential information, from July 1995 through December 2004, CBC operated under a licensing agreement with the Major League Baseball Players’ Association. Instead of renewing this agreement after it expired, in 2005 the Players’ Association licensed these rights to Advanced Media, the interactive and Internet arm of Major League Baseball. To clarify its legal rights, CBC filed this lawsuit in the U.S. District Court for the Eastern District of Missouri seeking a determination of whether CBC could continue to use player names and statistics in the absence of a licensing agreement.
In many states, a person’s ability to commercially profit from his or her identity is protected by a “right of publicity.” Under this right, for example, one cannot simply appropriate without consent the likeness of Albert Pujols (the slugger for the St. Louis Cardinals) in order to market a product. In this case, however, the parties could not point to any clear precedent as to whether this state law derived right extended to the use of mere names and statistical information.
Examining the elements of the right, the court determined that the Players’ Association would have to prove that CBC was exploiting the players’ “identities” to obtain a “commercial advantage.” The term “identity” does not refer to a mere name, the court determined, but to a “persona.” The Players’ Association failed to prove identity here because the mere use of player names and statistics “does not involve the character, reputation, or physical appearance of the players; it simply involves historical facts about the baseball players such as their batting averages … “ Likewise, the Players’ Association fared no better with the term “commercial advantage,” as the term does not denote the mere use of information for a profit. CBC did not obtain a “commercial advantage” here because its use of player names and statistics was no different from that of competing fantasy baseball leagues (there was no “commercial advantage” gained vis-à-vis its competitors). Also, CBC’s use of these names did not suggest that the players had endorsed CBC’s products, nor did it harm the players in their reputation or in their core economic pursuit of playing baseball to earn a living.
The court thus found that CBC had not violated the players’ right of publicity. However, the court’s analysis did not stop there. For the sake of addressing “all the issues raised by the parties,” the court then turned its attention to CBC’s argument that the First Amendment trumps the right of publicity in this case. The court analyzed the issue with a series of observations and conclusions:
• First, the court noted, the First Amendment protects information expressed via non-traditional mediums, including CBC’s interactive use of this information on the Internet.
• Second, the court observed that factual data in the public domain, such as player names, is particularly suited to protection.
• Third, the court held, the fact that CBC publishes this information to entertain, rather than inform, and does so for a profit is of no moment. Indeed, the court observed that books, newspapers, and magazines are also published and sold for profit.
• Finally, the court observed that CBC’s use of this information was not “commercial speech,” which is arguably entitled to less constitutional protection, because CBC was not using player names and statistics “merely to advertise a product or service.”
With these observations in mind, the court then balanced CBC’s freedom of expression under the First Amendment against the players’ asserted right of publicity. The court did so, in large part, by considering the practical consequences of alternative rulings: on the one hand, CBC would go out of business if it could not use player names and statistics; on the other hand, CBC’s use of this information, already in the public domain, would have no impact on the ability of baseball players to earn a living by playing baseball. The court rejected the notion that CBC’s use of this information resulted in unjust enrichment or disincentivized baseball players from playing Major League Baseball. For these reasons, the court found the balance weighed in favor of CBC.
Finally, the court threw a third strike at the argument of the Players’ Association by determining that the First Amendment also trumps the limitations described in the parties’ 2002 licensing agreement. The agreement provided that upon its expiration CBC would not “use in any way the Rights, the Trademarks, or any Promotional Material relating to the Licensed Products” and that CBC would “refrain from further use of the Rights and/or Trademarks or any further reference to them, either directly or indirectly.” CBC, in short, had agreed not to use player names in conjunction with statistics after the expiration of the licensing agreement. Nonetheless, the court held, the First Amendment rendered this contractual limitation unenforceable as construed by the Players’ Association.
Sports fans can take heart that this decision is a step in the direction of multiple, competitive fantasy sports leagues. Even those who cannot distinguish between a curve-ball and slider, but who support a broad application of the First Amendment, gain something from this decision. Most notably, the decision gives the First Amendment a significant role in delimiting the scope of the right of publicity, whether asserted under state law or pursuant to an equivalent contract provision. Of course, extra innings may lie ahead – the district court’s decision is subject to review by the Eighth Circuit Court of Appeals.
For more information, e-mail David C. Borucke at david.borucke@hklaw.com or call toll free, 1-888-688-8500.