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Tuesday, December 07, 2021

On MLB-owned media, the players now barely exist. What’s behind that decision?

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The players have been scrubbed from the league’s website and content ecosystem. Their headshots were removed from rosters, their highlights hidden, their names wiped from promotional schedules. (April 30 is “Cardinals Third Baseman Bobblehead” day at Busch Stadium.) Team social media accounts quieted and ceased referencing players at all; the league’s Twitter account went nearly three days without activity this weekend. MLB Network and MLB.com employees were instructed to mostly avoid mentioning active 40-man players’ names on air or in articles for the duration of the lockout.

But exactly why MLB is taking this route isn’t clear.

MLB is advised in labor relations by the law firm Proskauer Rose. Asked to explain the reason the league drastically altered its content vehicles, a commissioner’s office spokesperson said, “Every action we are taking is at the advice of legal counsel per the National Labor Relations Act.” The spokesperson declined, however, to identify what specifically in the NLRA or baseball’s collective bargaining agreement prompts or merits erasing current players.

When commissioner Rob Manfred was asked last week in a news conference whether it was a legal issue, he offered two words: “It is.” But legal experts who spoke to The Athletic found it difficult to confidently identify MLB and Proskauer’s potential legal theory.

“I can’t think of anything,” said Dave Leach, a professor at Brooklyn Law School and a former regional director for the National Labor Relations Board. “I’ve never seen a case which had similar facts. And I was there for 45 years, so I saw a good number of cases at the board.”

 

RoyalsRetro (AG#1F) Posted: December 07, 2021 at 03:45 PM | 19 comment(s) Login to Bookmark
  Tags: labor issues

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   1. Jose Has Absurd Goosebump Arms Posted: December 07, 2021 at 03:59 PM (#6056540)
"Lawyers advise clients to take ultraconservative approach" is not really something that should come as a shock to anyone. Taking the photos down is probably nonsense but it also doesn't hurt MLB from a legal perspective. This is how lawyers roll.

There was a funny scene in the British mini-series "Quiz" about the Who Wants To Be A Millionaire cheating scandal over there. Everyone is gathered around the table and when the lawyer is asked a question he says "welllll, on the one hand..." every answer. Finally after the third or fourth time this exchange happens;

Head Honcho: {asks complex question}

Lawyer: Welllll...

HH: IF YOU SAY WELL ONE MORE TIME YOU'RE FIRED!

Lawyer: I'm a lawyer, you pay me to say "wellll."

I think that sums up lawyers. That's not a bad thing, it's just their job. They tell you the law, then you decide how much risk you are willing to absorb.
   2. What did Billy Ripken have against ElRoy Face? Posted: December 07, 2021 at 04:47 PM (#6056554)
My best guess...

The details of the states' right of publicity laws vary somewhat (there is no federal law), but they all provide that you can't use someone's name, image, likeness or other identifying information for "commercial purposes" without their consent. I just did a quick check, and the now-expired CBA (somewhat surprisingly) does not appear to have had any language speaking expressly to this right vis-a-vis the players.

As TFA notes, the Uniform Player Contract (which is still in effect for signed players) is incorporated by reference into the CBA and contains the following provision: "The Player agrees that his picture may be taken for still photographs, motion pictures or television at such times as the Club may designate and agrees that all rights in such pictures shall belong to the Club and may be used by the Club for publicity purposes in any manner it desires."

Counsel for the players could plausibly argue that that language is not sufficient to give MLB consent for right-of-publicity purposes along multiple lines:

(1) The UPC language refers only to "pictures," which invokes likenesses but not names or any other info;
(2) It grants rights only to the Club, and not to a third-party entity such as, for example, MLBAM - there could be an argument over what entity is actually "using" the "pictures," and/or whether the Club has the ability to license any rights to a third party; and
(3) I assume it would not apply to current free agents, i.e., players who are not party to a UPC at this time, which would mean that there is no operative consent at all.

Of course, all of these could have potentially been issues when the CBA was in effect (which is why it's surprising that they would rely on such bad drafting), but obviously a player(s) would have little incentive to raise them. In the current context, given the gray areas above, I can totally see why the legal advice would be to take the safe approach, and why MLB would follow it.



   3. greenback used to say live and let live Posted: December 07, 2021 at 10:47 PM (#6056583)
Is there a reason this doesn't apply to, say, Johnny Bench and Pedro Martinez, both of whom currently have stories (with pictures) on mlb.com's front page?
   4. Walt Davis Posted: December 07, 2021 at 11:08 PM (#6056585)
San Francisco Left Fielder approves
   5. Pat Rapper's Delight (as quoted on MLB Network) Posted: December 08, 2021 at 12:39 AM (#6056591)
Is there a reason this doesn't apply to, say, Johnny Bench and Pedro Martinez, both of whom currently have stories (with pictures) on mlb.com's front page?

Retired players are not part of MLBPA. MLB isn't locking Bench or Pedro out of anything.
   6. Tulo's Fishy Mullet (mrams) Posted: December 08, 2021 at 12:50 AM (#6056592)
MLB is not Pedro's Daddy.
   7. manchestermets Posted: December 08, 2021 at 04:38 AM (#6056599)
there could be an argument over ... whether the Club has the ability to license any rights to a third party


Would this not be covered by "agrees that all rights in such pictures shall belong to the Club"? If a right belongs to you, do you not inherently have the ability to license that right?

Retired players are not part of MLBPA. MLB isn't locking Bench or Pedro out of anything.


Okay, but does the removal of the active players' images not imply that in the absence of some agreement or other (be it the CBA or the player's contract) then MLB has no default rights to use anyone's image? Is there any kind of retired players' organisation with which MLB has a blanket agreement? It makes me wonder why Pedro wouldn't ask "If you've accepted you can't use their images, what makes you think you have a right to use mine?"

(IANAL)
   8. Slivers of Maranville descends into chaos (SdeB) Posted: December 08, 2021 at 08:43 AM (#6056603)

Retired players are not part of MLBPA. MLB isn't locking Bench or Pedro out of anything.


What's the legal theory though that it's okay to use their likenesses and not those of current players?
   9. RoyalFlush Posted: December 08, 2021 at 09:37 AM (#6056606)
What's the legal theory though that it's okay to use their likenesses and not those of current players?


As I understand it, using active players NIL on the site is a negotiated part of the CBA. No CBA means there's no agreement in place for the league to use the NIL of active players. So, they remove them.

Retired players' NIL aren't protected by the CBA.



   10. snapper (history's 42nd greatest monster) Posted: December 08, 2021 at 10:02 AM (#6056613)
As I understand it, using active players NIL on the site is a negotiated part of the CBA. No CBA means there's no agreement in place for the league to use the NIL of active players. So, they remove them.

Retired players' NIL aren't protected by the CBA.


Aren't you getting this reversed? Everyone's NIL is protected by the law. The Collective bargaining agreement and player contracts give MLB rights to the NIL of active players. They have no such agreement with inactive players, so they should have no rights.
   11. cardsfanboy Posted: December 08, 2021 at 10:09 AM (#6056614)
Not a lawyer, and I know common sense doesn't apply to the law and lawyers, but wouldn't the right to retired players likeness have been negotiated in a previous cba that would be currently enforceable? Heck it's probable that MLB could still use the current likeness's, but probably as mentioned in the first part, decided it would be safer to remove them than worry about another battle.

Or another way to look at it, if the team had the right to use a retired players likeness before the lockout, there is no reason that the lockout would preclude them from currently using the retired players likeness. As mentioned the CBA probably has nothing to do with retired players.

So even if
Everyone's NIL is protected by the law. The Collective bargaining agreement and player contracts give MLB rights to the NIL of active players. They have no such agreement with inactive players, so they should have no rights.


It probably wasn't the current cba that gave them permission to use retired likeness.
   12. RoyalsRetro (AG#1F) Posted: December 08, 2021 at 10:39 AM (#6056620)

What's the legal theory though that it's okay to use their likenesses and not those of current players?


I think what's being implied is that there isn't really, that it's a tactical decision. The article references the NBA and NHL doing the same thing during their labor stoppages, with the NBA saying it wasn't a legal decision. What I'm less clear is what the tactic is really.
   13. McCoy Posted: December 08, 2021 at 10:45 AM (#6056622)
I would assume MLB can write news stories about anyone they want and can show pictures of anyone for it. Now then if they were to put a picture of Johnny Bench in a commercial for tickets or a subscription they need his permission or have bought the rights.

   14. What did Billy Ripken have against ElRoy Face? Posted: December 08, 2021 at 11:02 AM (#6056625)
Would this not be covered by "agrees that all rights in such pictures shall belong to the Club"? If a right belongs to you, do you not inherently have the ability to license that right?
That's the position that MLB would take, of course, and it appears that (absent additional language that we don't know about) the players have gone along with it. MLB would likely argue that the parties' historical course of dealing means that it should be interpreted that way. However, (1) as noted above, there is no federal right of publicity, and it has been/is unclear in some states whether publicity rights are assignable to begin with. For example, California courts didn't expressly find that they are assignable until 2014 (from a quick Google). I assume the UPC language far predates that. And (2) even where publicity rights are assignable, you could argue that the language does not effect an assignment. It refers to the "rights in such pictures," whereas the right of publicity inheres in the player, not the picture (as contrasted to copyright, for example).

However, all of that said, it's interesting that MLB's YouTube channel still has highlight clips and full games from last year up. Again, this is all kind of guesswork, but maybe they're taking the position that because the UPC language specifically contemplates television, it's safer to keep the games up than, for example, any new original content on MLB.com. Or there may be some additional language in the broadcast contract(s) (do the networks also have contracts with the MLBPA, or just MLB?).

Is there a reason this doesn't apply to, say, Johnny Bench and Pedro Martinez, both of whom currently have stories (with pictures) on mlb.com's front page?
Probably some combination of the following:
(1) Reliance on the "news" exception in right of publicity laws, which exempts news coverage from being "commercial purposes." The Bench piece, for example, is tied to his birthday. Or all of the HOF coverage would also be news.;
(2) Side agreements with certain players - for example, Pedro is an MLB commentator. There could be language in that contract that covers his publicity rights.;
(3) Reliance on the clause discussed above with respect to historical game footage/photos; and
(4) Realization that retired players don't have much incentive to sue, and lack of bad blood between the sides.
   15. RoyalsRetro (AG#1F) Posted: December 08, 2021 at 11:05 AM (#6056626)
However, all of that said, it's interesting that MLB's YouTube channel still has highlight clips and full games from last year up. Again, this is all kind of guesswork, but maybe they're taking the position that because the UPC language specifically contemplates television, it's safer to keep the games up than, for example, any new original content on MLB.com. Or there may be some additional language in the broadcast contract(s) (do the networks also have contracts with the MLBPA, or just MLB?).


From TFA, it says MLB owns a copyright to all games and can use them as they see fit.
   16. What did Billy Ripken have against ElRoy Face? Posted: December 08, 2021 at 11:07 AM (#6056628)
What I can say with certainty is that MLB paid Proskauer a lot of money for a junior associate to write a lengthy memo about this, which was then presented with a senior partner's name on it.
   17. What did Billy Ripken have against ElRoy Face? Posted: December 08, 2021 at 11:07 AM (#6056629)
From TFA, it says MLB owns a copyright to all games and can use them as they see fit.
Copyright in the broadcasts is separate from the players' publicity rights.
   18. greenback used to say live and let live Posted: December 08, 2021 at 11:15 AM (#6056631)
Yes, but the weird point here is that it's apparently OK to say "Carlos Beltran struck out to end the 2006 NLCS" but MLBAM can't say "Adam Wainwright got the strikeout to end the 2006 NLCS." Presumably Carlos Beltran has not negotiated away his NIL rights, unlike the MLBPA. The theory is supposed to be that Beltran is unlikely to sue to protect his NIL, and the MLBPA may in fact do so, but mostly that sounds like a BS excuse to go Stalin on all active players.
   19. Russ Posted: December 08, 2021 at 01:52 PM (#6056671)
What I'm less clear is what the tactic is really.


To me, this is the more obvious part. Why would you have all of these players on your website reminding fans how good they are when you can take them all off and make the players try to move public opinion on their own dime? Out of sight, out of mind for sure is part of it. The other part could be financial. There is always the possibility that the MLBPA could claim that season ticket sales until the new CBA is signed are due to the players not the clubs and could try to ask for some piece of that during the negotiations. This way the clubs can take the position that any season ticket sales during the lockout are off limits for any benefits of revenue sharing with the players because their likenesses were not used to advertise during this period. It's a very aggressive position. but might enable them to negotiate something more favourable.

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