Good news in judge's fantasy-league ruling

By Gene Policinski
First Amendment Center executive director

Fantasy baseball league fans — and the companies that sell statistics-based services to them — are the beneficiaries of a ruling yesterday by U.S. District Judge Mary Ann Medler in St. Louis.

Judge Medler’s decision that neither Major League Baseball nor its players “own” the stats that track player performance and game developments, or control use of their names in a purely-factual account, also fits into a larger picture — one that goes beyond baseball and well beyond sports into the emerging law regarding “who” owns “what” in cyberspace.

Baseball’s owners and the players union teamed up in this specific case — CBC Distribution and Marketing, Inc. v. Major League Baseball — to claim both intellectual-property rights to accounts of the games and a player “right of publicity” to control how his name is used in a commercial venture.

Medler held that mere facts about games are not subject to copyright, echoing earlier decisions that held such “serendipitous” contest results were unlike other public and creative events such as stageplays or movies. And, Medler said, even if players have a general right of control over their names, such would apply when the names were being used in connection with commercial offers that, for example, might imply product endorsement – but not when attached simply to a factual account of a game or player performance. First Amendment protections trump player commercial interests, the judge said.

Some critics painted baseball owners and players as villains, out to destroy the fans’ simple enjoyment of the stat-based competition known as “fantasy baseball,” in which “team managers” compete on the basis of actual statistics rung up in the big leagues by players on their respective teams. But providing stats — along with electronically maintaining league records and the advertising attached to such online offerings — makes CBC and other such firms a profitable living — apparently one in which players and owners want to share.

That’s the tempest-in-a-dugout at the heart of this case. But consider the larger implications of Medler’s holding that the facts and names of a game cannot be controlled, even by those who own the teams and play the games. At its core, the decision says news events cannot be owned by newsmakers, and that those in the news do not have a right to control factual reports about their activities — a ringing First Amendment protection of the free flow of information, unfettered by either government or commercial interests.

It’s also worth considering what the ruling did not do: preclude leagues from charging rights fees for live broadcasts of sporting events; prevent players and others from controlling how their names are used when an endorsement or support might be implied or stated; or settle the issue of what is “live” and what is not in a wired world of instant data transmission and photo accounts.

A 2004 decision in a Professional Golfers' Assocation-related case would caution those who see Medler’s decision as providing no limits to relaying accounts of athletic events. The 11th U.S. Circuit Court of Appeals upheld the PGA’s move to prevent news media from instantaneously relaying reports of golfers’ scores. At the time, the PGA required news media to wait at least 30 minutes or until after the association’s own Web site had posted a score. The 11th Circuit said the PGA’s investment in an intricate score-reporting system could justify the restriction. So reporting was OK — but as “history,” not real-time accounts.

And yet, in 1997 the 2nd Circuit had ruled the National Basketball Association could not impose such an “as-it-happens” ban. The street value of the timeliness of reporting was at the heart of those two cases – and clearly that issue isn’t yet settled.

But at least there is a clear affirmation from Judge Medler that facts — the ultimate stuff of news and information — cannot be “owned” or copyrighted.

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