Baseball Stadium SkylineFantasy baseball players aren’t the only ones celebrating the recent decision by the Supreme Court to deny cert and let stand the Eighth Circuit opinion in favor of CBC Distribution and Marketing, Inc. over Major League Baseball Advanced Media (MLBAM). There are broad implications for the surging fantasy industry, which has expanded in scope beyond football and baseball into other sports such as golf and even bass fishing, and is now a $1.5 billion industry annually.

Easily the biggest losers in this fight were MLBAM and the Major League Baseball Players Association (MLBPA), who entered into a five-year, $50 million agreement in 2005 that gave MLBAM exclusive rights to use baseball players’ names and performance information “for exploitation via all interactive media.” To that point, MLBPA had been liberally granting licenses to companies that ran fantasy games for a small portion of their proceeds, but they began tightening the market down to 19 licensees in 2005 and 7 in 2006. Not surprisingly, the cost of playing fantasy baseball increased as a result.

The legal fight that ensued represented more than an attempt by CBC to get back into a market from which it had been excluded. It represented a balancing of the players’ “right of publicity” and First Amendment considerations. After all, the statistics and results of the games were pieces of factual information printed regularly in box scores all over the Internet and in newspapers around the country.

Before the Appeals Court made its ruling, Eugene Volokh argued that if they found in favor of MLBAM and the players, such a decision would have “[spoken] to any time you use a name in a commercial venture,” and pointed out that the authors of historical novels or the producers of games like Trivial Pursuit and Jeopardy! might be found liable as well.

While the denial of cert doesn’t have the same finality that a decision on the merits would have, it’s safe to say that for the time being, fantasy fishing fans will not have to pay for the privilege of drafting Mark Davis with the first pick.

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Andy Veit

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