The First Amendment and Baseball

If you build it, they will come.  And the fans have, of course, flocked to online fantasy sports sites. Fantasy sports leagues are big business, about $1 billion a year, according to one estimate. Recognizing the revenue potential in fantasy sports, in 2005 Major League Baseball included in its agreement with the Major League Baseball Players Association a provision that provided Major League Baseball Advanced Media with rights to license and sublicense to others group rights for the development and creation of on-line games, including fantasy baseball.

C.B.C. Distribution and Marketing is a company engaged in selling fantasy sports products that incorporate the names, performance data and biographical data of Major League Baseball players. In 1994 and 2002 C.B.C. licensed the right to use players' names and information from the MLB Players Association, but when the 2002 agreement expired, C.B.C. was offered a more limited license to the players' information and rights of publicity by MLB Advanced Media. C.B.C. instead brought an action for a declaratory judgment in federal court that its use of the players' information did not violate their rights of publicity.  In C.B.C. Distributing and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. 443 F.Supp.2d 1077 (E.D. Mo. 2006), the district court granted summary judgment to C.B.C. on the ground, among others, that C.B.C. was not infringing the players' state law rights of publicity under Missouri law and that even if it was, those rights were preempted by the First Amendment.

Now, just in time for the World Series, the Eighth Circuit has upheld the grant of summary judgment, but did not agree with the lower court ruling in its entirety. In a ruling that may have broad implications for other kinds of virtual worlds, the court ruled that even though C.B.C. violated the state law right of publicity of the players, the First Amendment trumps those rights in the present context. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., No. 06-3357/3358 (8th Cir. Oct. 16, 2007)

The circuit court noted that the information used by C.B.C. is in the public domain, and that the use of that information in the context of a video game is First Amendment protected expressive speech. The circuit court also heavily relied on the "public value of information about the game of baseball and its players," commenting:

A California court, in a case where Major League Baseball was itself defending its use of players' names, likenesses, and information against the players' asserted rights of publicity, observed, "Major league baseball is followed by millions of people across this country on a daily basis ... The public has an enduring fascination in the records set by former players and in memorable moments from previous games ... The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today's performances." Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001). The Court in Gionfriddo concluded that the "recitation and discussion of factual data concerning the athletic performance of [players on Major League Baseball's website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection." Id. We find these views persuasive.

The circuit court also referenced the compensation levels of MLB players, in assessing the economic interests implicated by the players' rights of publicity:

In addition, the facts in this case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals. Economic interests that states seek to promote include the right of an individual to reap the rewards of his or her endeavors and an individual's right to earn a living. Other motives for creating a publicity right are the desire to provide incentives to encourage a person's productive activities and to protect consumers from misleading advertising. See Zacchini, 433 U.S. at 573, 576; Cardtoons, 95 F.3d at 973. But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with "star power" is endorsing CBC's products.

As to the argument that publicity rights protect non-monetary rights, the circuit court appeared to endorse Tom Hanks's famous line (in "A League of Their Own") that "there's no crying in baseball."

Then there are so-called non-monetary interests that publicity rights are sometimes thought to advance. These include protecting natural rights, rewarding celebrity labors, and avoiding emotional harm. See Cardtoons, 95 F.3d at 973. We do not see that any of these interests are especially relevant here, where baseball players are rewarded separately for their labors, and where any emotional harm would most likely be caused by a player's actual performance, in which case media coverage would cause the same harm. … We also note that some courts have indicated that the right of publicity is intended to promote only economic interests and that noneconomic interests are more directly served by so-called rights of privacy. *** For instance, although the court in Cardtoons, 95 F.3d at 975-76, conducted a separate discussion of noneconomic interests when weighing the countervailing rights, it ultimately concluded that the non-economic justifications for the right of publicity were unpersuasive as compared with the interest in freedom of expression. "Publicity rights ... are meant to protect against the loss of financial gain, not mental anguish." Id. at 976. We see merit in this approach.