Advertising Law Blog

A lawsuit involving fantasy baseball is pending in the Eastern District of Missouri that could effect the way millions of baseball fans are able to enjoy the sport.

For the uninitiated, fantasy baseball, also called rotisserie baseball, involves a group of baseball fans getting together and selecting an imaginary or "fantasy" team comprised of real-life major leaguers. The statistics, such as home runs, RBIs or stolen bases, accumulated by the major leaguers result in points being awarded to the fantasy team owners. Often, these leagues have entry fees which are then divvied up at the end of the season in the form of prize money. With the advent of the Internet, the number of fantasy baseball leagues has exploded, and many websites have popped up that are willing, for a fee, to keep track of team rosters and statistics, in effect serving as league operators and administrators for baseball fans who would rather watch the games than struggle at a computer to correctly input items such as the number of runs batted in for Albert Pujols in any given week.

Always on the lookout for new sources of revenue to cover astronomical player salaries, Major League Baseball paid $50 million to the MLB Players Association in 2005 for the rights to use players' names, images, and similar attributes for any commercial purpose on the Internet and on mobile devices. Included in this bundle of rights is the authority to grant licenses to fantasy baseball websites. Previously, Major League Baseball had licensed about twenty different companies to serve as official fantasy league operators, but after making the deal with the players' union, the amount of licenses was winnowed from twenty down to just four. One of the league operators that didn't make the cut was CBC Marketing. The company decided to file suit in federal court in St. Louis seeking a declaratory judgment that under the First Amendment, no license was needed in order to use statistics generated in major league games. Currently, hundreds of sites, including CBC, operate fantasy leagues without a license, and they will all be affected one way or another by the outcome of the suit.

The defendant in the lawsuit is the MLB Players Association, who licensed the rights to Major League Baseball. However, CBC has so far done a good job of portraying Major League Baseball, as hypocritical, by pointing to a recent case that the owners won against an obscure world series hero from years ago, Al Gionfriddo. In the 1947 world series, the light-hitting Gionfriddo robbed Joe DiMaggio of a home run with one of the most celebrated catches in baseball history. Radio announcer Red Barber's "back back back" call of the play remains in baseball fans' lexicon nearly sixty years later. Gionfriddo never played another game in the majors after 1947 but sued Major League Baseball years later for using his likeness and statistics in advertisements. In defending the lawsuit, Major League Baseball took the position with California State Courts that the use of statistics, even with items sold for profit, are not protectable pursuant to the First Amendment. The Court agreed with Major League Baseball that Gionfriddo's rights of publicity and were not violated.

Having now paid $50 million for the right to exploit players' statistics, Major League Baseball may find itself haunted by the stance it took against Mr. Gionfriddo. CBC has filed a motion to compel full production of all documents from the Gionfriddo litigation, and it relies heavily on the Gionfriddo decision in the summary judgment motion that is briefed and awaiting a July hearing. "The California Court of Appeals conducted a thorough First Amendment analysis," writes CBC's attorneys, "weighing First Amendment protection against the right to publicity, and [the California Court of Appeals] concluded that Major League Baseball's use of former major league players' information and biographical facts was fully protected by the First Amendment and thus unenforceable as a constitutional matter under any state law right of publicity theory. The court held that it is manifest that as news occurs, or as a baseball season unfolds, the First Amendment will protect mere recitations of the players' accomplishments." Baseball players' statistics, CBC continues, are historical facts that enter the public domain as soon as they happen. In the court of public opinion, the millions of fantasy baseball players would undoubtedly side with CBC.

If CBC fails to convince the judge, and Major League Baseball has the right to control who can use its statistics, fantasy baseball players can expect the price of joining a fantasy league to emulate the real-life prices they pay tickets, hot dogs and beer and at an actual ballgame. In the coming months, we'll find out how the United States Court for the Eastern District of Missouri views the issue.