Entertainment Law Reporter
July 2006 Volume 28 Number 2

Fantasy sports company does not violate the rights of publicity of Major League Baseball players by using their names and playing records in online fantasy baseball game

CDM Fantasy Sports has succeeded with its claim that its use of the names and playing records of Major League Baseball players in its online fantasy baseball games does not violate the rights of publicity of those players. Federal Magistrate Judge Mary Ann Medler has so ruled, in response to cross-motions for summary judgment in a declaratory relief lawsuit filed by Fantasy Sports against Major League Baseball.

Fantasy Sports filed the lawsuit when the League suggested the company could no longer offer its own fantasy baseball games after the company’s licensing agreement with the Players Association expired at the end of 2004. The Players Association intervened in the case on the side of the League.

Judge Medler found that the players do not have a right of publicity in their names and playing records, and that even if they did, Fantasy Sports' use of their names and playing records in its fantasy games did not violate the players’ claimed rights. Key to that ruling was the fact that Fantasy Sports did not use the players’ images – simply their names and publicly-known playing stats.

The judge also ruled that the First Amendment applies to Fantasy Sports’ fantasy baseball games, so that even if the players’ did have rights of publicity in their names and playing records, Fantasy Sports would have a free speech right to use them.

The now-expired license agreement between Fantasy Sports and the Players’ Association contained a provision that prohibited the company from using players’ names and playing records after it expired. It also had a “no-challenge” clause that barred Fantasy Sports from challenging the players’ rights. Nevertheless, Judge Medler rejected the Players’ Association’s reliance on the contract, on the grounds that the “no-challenge” provision was unenforceable for reasons of “public policy.”

As a result, the judge ordered the Players’ Association and the League not to interfere with Fantasy Sports’ fantasy baseball games.

C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 2006 WL 2263993, 2006 U.S.Dist.LEXIS 55060 (E.D.Mo. 2006)