If only there were lawyers who enjoy baseball and conversing on the internet with strangers who could put this into context for me.

Red Menace: I'll help by answering Brown's question: "No."

Scalia better not take fantasy baseball away.

If only there were lawyers who enjoy baseball and conversing on the internet with strangers who could put this into context for me.

Here's the context.

MLBAM and the MLBPA reached an agreement several years ago to license the use of player names along with their statistics. CDM (also called CBC Marketing, Inc., the parent company of CDM at the time) had been paying a license to baseball, but when the new deal came about between BAM and the PA, the number of licenses went down, and the cost went up dramatically.

CDM decided to be the legal test to see if baseball had the right to license statistics in conjunction with player names. CDM decided to continue to run their fantasy sports baseball games without a license. Since CDM sued BAM and the PA, the case has been heard under Missouri state law, as CDM was a St. Louis based company.

CDM has argued that the stats along with player names are protected under the First Amendment. Baseball has argued that using player names in conjunction with stats is a violation of privacy rights -- the fantasy sports companies are profiting by using the players names with the stats. BAM and the PA's lawyers have been very smart in saying that fantasy companies can freely use the stats, just don't place an MLB player's name next to it.

CDM has won in the U.S. District Court for the Eastern District of Missouri in St. Louis and it was upheld on appeal the Court of Appeals for the Eighth Circuit.

That leaves the Supreme Court as the last stop for baseball to try and make their case.

As noted, this is not just an MLB case. It impacts all professional sports leagues that are looking to license stats with player names. The NFL, NBA, WNBA, the PGA, and NASCAR have all filed "friendly briefs" in support of MLBAM/MLBPA.

The case, if heard, has the capacity to redefine what is protected under the First Amendment. It touches on whether newspapers profit by running boxscores. It could touch on whether sites like Forman's Baseball-Reference are profiting based in using stats with player names.

In other words, it's a big case, that has profound impacts to every professional sports league in America and the Fantasy Sports industry which is far removed from the mom and pop phase... it's a $2 billion+ industry now.

it's a $2 billion+ industry now

That's pretty immaterial to the First Amendment and scope-of-copyright issues involved, though.

Wait until the entire court has to recuse themselves due to playing fantasy baseball.

Wait until the entire court has to recuse themselves due to playing fantasy baseball.

Would not surprise anyone to find one or more of the Justices doing so.

Scalia would probably insist on staying on the base despite running several fantasy teams, including one in a league with Dick Cheney.

That'd be nothing new. Justice Taney had Dred Scott in his keeper league.

Maury, didn't MLBAM deny CDM a license once they bought the rights from the MLBPA?

I thought I read that CDM was paying licensing fees every year, no problems, and that MLBAM actually denied them a license once they got control.

In other words, it's a big case, that has profound impacts to every professional sports league in America and the Fantasy Sports industry which is far removed from the mom and pop phase... it's a $2 billion+ industry now.

The original decision was upheld on appeal, and there's no broad social policy issue. It's already an upset for the Supreme Court to even be considering hearing the case. I'm not a lawyer, but it would be a HUGE surprise if they actually did hear the case.

Scalia better not take fantasy baseball away.

No matter what happens fan boy, fantasy baseball will remain. It only means Yahoo! or ESPN or CBS pays a fee to MLB for the rights to run a fantasy league. Big deal.

"That'd be nothing new. Justice Taney had Dred Scott in his keeper league."

zing!

Maury, didn't MLBAM deny CDM a license once they bought the rights from the MLBPA?

I thought I read that CDM was paying licensing fees every year, no problems, and that MLBAM actually denied them a license once they got control.

That'c correct. It was at that point that CDM/CBC decided to go forward without the license. It is also part of the BAM/PA case: CDM broke their agreement. As Judge Colloton wrote in his dissent:

I disagree with the court’s conclusion ... that the provisions are unenforceable because MLBPA breached a warranty set forth in section 8(a) of the agreement.

Section 8(a) appears under a heading “Ownership of Rights.” It provides as follows: “It is understood and agreed that MLBPA is the sole and exclusive holder of all right, title and interest in and to the Rights and/or Trademarks for the duration of this Agreement.” Given the court’s resolution of issues concerning the right of publicity and the First Amendment, section 8(a) wins the day for CBC only if it is a warranty by MLBPA that CBC does not have rights under the First Amendment to use the players’ names and statistics in its fantasy baseball games. Assuming that section 8 a) does address CBC’s constitutional rights (as opposed merely to the players’ state-law rights of publicity, which are accurately represented), and assuming that one party’s prediction about the constitutional rights of another party is the sort of “fact” that can be warranted under New York law, section 8(a) does not purport to make such a warranty. The provision states that the parties “agree” that MLPBA is the sole and exclusive holder of all right, title and interest in and to the Rights. CBC surely can “agree,” as a matter of good business judgment, to bargain away any uncertain First Amendment rights that it may have in exchange for the certainty of what it considers to be an advantageous contractual arrangement. See Paragould Cablevision v. City of Paragould, 930 F.2d 1310, 1315 (8th Cir. 1991). That CBC later decided it did not need a license, and that it preferred instead to litigate the point, does not relieve the company of its contractual obligation. See Heath v. Dick Co., 253 F.2d 30, 34-35 (7th Cir. 1958).

I also do not believe the district court’s grant of summary judgment invalidating the no-use and no-contest provisions can be sustained on the grounds actually raised by CBC. I agree with the court that MLBPA has not breached the warranty set forth in section 1(b) of the agreement. And I would not adopt the district court’s conclusion that the Supreme Court’s decision in Lear, Inc. v. Adkins, 395 U.S. 653 (1969), should be applied to declare the no-use and no-contest provisions unenforceable as against public policy. Lear held that state contract law establishing the doctrine of licensee estoppel in a patent case was preempted where its enforcement would significantly frustrate “overriding federal policies” embodied in the federal patent laws. The Lear approach to preemption has been extended only to areas where there are comparable federal policies derived from federal statutes that justify the preemption of state law. In this case, there is no federal statute that addresses state-law contract obligations with respect to the right of publicity, and no indication that Congress sought to abrogate contracts in this area that are otherwise enforceable under state law. I would not fashion a rule of federal common law that abrogates these freely negotiated contractual provisions. See Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir. 1987).

SCOTUS refuses to hear the case.

-- MWE