According to the Sports Business Journal, Major League Baseball and its Players’ Association are submitting a Writ of Certiorari to the U.S. Supreme Court to overturn a ruling made by the 8th Circuit Court of Appeals that allows fantasy baseball companies to continue to use players’ names and statistics without paying a licensing fee.
Major League Baseball has argued that players should be paid when their names are used for fantasy baseball leagues. Conveniently, they believe the players should be paid in the same way they are paid when their names are used for product endorsements.
The problem Major League Baseball has had in advancing this argument is that their position flies in the face of existing copyright law. As the 8th Circuit pointed out, it would be a strange law, to say the least, that a person would not have a First Amendment right to use information that is available to everyone in the public domain. There is no violation of the right of publicity.
Given the difficulty in getting certiorari from the Supreme Court, Baseball’s brief argues for the need to establish uniform standards for publicity right disputes.
In raising this issue, I suspect Major League Baseball will cause themselves, and likely other sports, far more harm than good. Based on the 8th Circuit’s ruling and the likelihood that baseball will not only lose on appeal but not even receive certiorari, you have to wonder how the sports video games industry will respond. While I would not expect the major players like the Madden franchise to discontinue paying the NFL a licensing fee for the use of the player’s names, it has to have an impact during negotiations when someone from Madden looks across the table and says, “Tell me again exactly what we are paying you guys for?”
Moreover, is this really a battle baseball wants to win? Do they want fewer people playing fantasy baseball? If they hold all the fantasy providers hostage, demanding licensing fees, wouldn’t you think Congress, many of whom play fantasy baseball, might find that problematic? Congress waves the antitrust exemption in front of baseball at every turn and there is no reason to think they would not do the same thing here. You would think that considering the Mitchell Report and the Clemens debacle, major league baseball would want to lie low and try to curry the favor of its most ardent fans and Congress. It seems the skippers of Major League Baseball continue to direct their ship towards short-term profits at the long-term expense of this great game.