Sports leagues losing the battle to control fantasy leagues

By Eriq Gardner

We don't know how many celebrities play fantasy sports, but they should pay attention to how courts keep chipping away some of their legal protections.

On Tuesday, a Minnesota District Court granted CBS's summary judgment seeking a declaration that the media company should not have to pay licensing fees on players' names, likenesses, and statistics. The court had to balance state right-of-publicity laws against First Amendment free speech protections and decided the latter should triumph.

The decision echoes another fight over a fantasy baseball product, where Major League Baseball lost at the 8th Circuit and couldn't get the Supreme Court to hear an appeal over whether copyright law protects names, likenesses, and statistics.

In the latest case, the Minnesota District Court adopts that opinion and extends it beyond the baseball world. The NFLPA tried to note the 8th Circuit's words that baseball is a "national pastime," deserving of special protection, but in the latest opinion, "the Court declines to indulge in a philosophical debate about whether the public is more fascinated with baseball or football or the statistics generated by each."

Naturally, the question can be raised whether celebrities who protect their rights diligently have copyright control over professional and personal information that may be used for commercial purposes. Will the First Amendment give businesses the right to use and market this information without celebrity consent?

We're still awaiting an answer to this question, but cases involving fantasy sports aren't helping celebrities in a potential claim. So far, fantasy sports operators have been very smart in rushing to middle-America jurisdictions instead of allowing sports leagues to fight these cases on the coasts--such as in California, where rights of publicity are pretty sacrosanct. Eventually, conventional legal wisdom may set in that commercial operators are free to use personal information about celebrities as they please.