No licence required to run a fantasy league – in US or UK

Out-Law News | 03 Dec 2007 | 6:49 pm | 4 min. read

A US court has refused a rehearing of a case brought by Major League Baseball against the operator of a fantasy baseball league. If a fantasy soccer league was challenged in British courts, the result is likely to be the same, according to a legal expert.

Advert: Pinsent Masons seeks another Trade Mark Attorney, based in London, Leeds or BirminghamThe request for a rehearing of the case had been supported by other giants of US sport, including the NFL, NHL, PGA Tour and Stock Car Auto Racing.

In 2006, CBC Distribution and Marketing, owner of fantasy sports site, won a victory in a Missouri district court. CBC went to court to establish its right to use, without a licence, the names of baseball players and game results and statistics.

CBC's website lists baseball players for selection. Fans pay CBC to take part in the fantasy leagues and additional sums to trade players. Before the start of the professional baseball season, participants build teams by 'drafting' players from various Major League baseball teams. The success of a participant's fantasy team over the course of the baseball season is dependent on one's chosen players' actual performances on their respective actual teams. The website also gives up-to-date stats, including batting averages and home runs.

CBC went to court in 2006 seeking a summary judgment that would declare its fantasy leagues lawful. It was pre-empting a lawsuit from the Major League Baseball Players' Association and the internet arm of Major League Baseball that had already complained about its use of the data.

Major League Baseball counter-claimed. Its internet arm, Major League Baseball Advanced Media, had paid $50 million to the Players' Association in 2005 for internet rights to the players' images and names for five years – and it wanted to sub-license those rights to publishers and companies like CBC. It said that CBC's fantasy league violated rights of publicity belonging to players because it operated without a licence.

In August 2006, Judge Mary Ann Medler in the Missouri court said that CBC "has not and is not violating the players' claimed right of publicity." She reasoned that CBC's fantasy baseball products did not use the names of major league baseball players as symbols of their identities and with an intent to obtain a commercial advantage, as required to establish an infringement of a publicity right under Missouri law. Even if it were infringing the players' rights of publicity, the first amendment right to free speech pre-empted those rights, she ruled.

Judge Medler granted summary judgment to CBC. That ruling was appealed. A three-judge panel in the US Court of Appeals for the Eighth Circuit ruled in October 2006 that the players "offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law." They reasoned that because CBC used baseball players' identities for profit, these identities were being used for commercial advantage. But they accepted CBC's argument that the first amendment trumps the right-of-publicity claim.

The Appeals Court wrote: "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."

In October this year, Major League Baseball filed a petition for a rehearing by a full panel of Appeals Court judges. That filing was supported in a brief from professional associations for football, hockey, golf and stock car racing which argued against the Appeals Court's observation.

"It is not at all strange that, although information comprising a celebrity's identity is available to everyone insofar as it is publicly known, no one has a First Amendment right to exploit that celebrity's identity for commercial advantage without the celebrity's consent," argued the brief.

However, Major League Baseball's petition was denied last week, without explanation. The organisation must now decide whether or not to appeal the case to the US Supreme Court.

A UK lawyer said the same result should be expected over here if there were a similar dispute over a fantasy football league.

"If a similar case came before the High Court in England based on football statistics it would likely focus on trade mark rights, database rights and personality rights," said Iain Connor, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM. "But the decision would surely be the same as in the US."

"Such a claim would fail for essentially the same reason – the information is publicly available and whilst money is being made from the fantasy league it is not made at the expense of any particular individual," said Connor.

Connor pointed to a 2003 court victory for Eddie Irvine against Talk Radio. The former racing driver sued the radio station over an unauthorised promotion that featured a doctored photo of him and implied his endorsement of the station. He argued that the publication damaged his reputation and goodwill and won £25,000.

"To the extent personality rights exist under English law, the footballers' individual rights are not being used by a fantasy football league to endorse the league in an 'Eddie Irvine' sense but merely to record and describe relevant statistics," said Connor. "Similarly, even if players have registered their names as trade marks, the fantasy football league would be using them descriptively, so there's no claim there."

"There are some arguments around infringement of database rights but on the basis that the operator of the fantasy football league would be creating the database from live statistics as they happened, it's unlikely that they could be stopped."

"If the operator stole all the data at once from a single source, that could be a breach of database rights, but that's unlikely to happen with a fantasy football league. To be run properly, a fantasy league needs far more than just the final scores. An operator needs lots of data from multiple sources so will likely build its own database – and that's far, far safer in legal terms."

Connor said problems are more likely to arise if an operator embellishes the site with images of players.