Last weekend, the co-chairs of the Knight Commission on Collegiate Athletics, William E. Kirwan and R. Gerald Turner, published an opinion piece in the Los Angeles Times about college athletes in fantasy sports. The Knight Commission has the stated goal of restoring “academic values in intercollegiate athletics,” so the timing of this article was probably no accident because as college football season gets underway so too do the myriad college football fantasy leagues scattered all over the Internet.

In case you’re not a college football fan, these fantasy leagues provide a forum where individuals can select different, individual college football players to create a fantasy team. A fantasy team competes with other fantasy teams within its league. The team’s success is based on the cumulative, real-world statistical success of the actual college football players selected for a team. Therefore, the more statistically successful your selected players are over the weekend, then the more successful your fantasy team will be. These fantasy leagues use the college football players’ real names, which raises an interesting legal issue.

The writers of the article report that the National Collegiate Atheletic Association (NCAA) bylaws only allow the players’ names and images to be used to promote their teams and games. The NCAA values amateurism and would like college athletes to be treated like other students, and not as commodities whose names and likenesses can be bought and sold.

Kirwan and Turner conclude that, in fact, neither the NCAA nor the universities acquire any right of publicity in the student athletes; however, many online fantasy sports companies use the players’ names, charge fees to enter their fantasy leagues, and some even offer cash prizes for being the most successful team in a user league.

The authors address the question of whether a fantasy league’s use of players’ names amounts to a violation of the athletes’ right of publicity. They mention that fantasy leagues think there is a legal loophole that allows them to legally use the players’ names. The Eighth Circuit, in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., discussed in a previous post, found that “the information used in [online sports fantasy leagues] is all readily available in the public domain . . .” The court held that a fantasy league operator’s use of Major League Baseball players’ names on its website was speech protected by the First Amendment. The court further noted that this conclusion did not undermine the monetary interests that right-to-publicity laws are intended to vindicate, such as the individual’s right to reap the rewards of his personal endeavors, because professional athletes are “handsomely” rewarded for their endeavors.

Interestingly, the C.B.C. Distribution court did not address whether amateur athletes’ names are also part of the public domain such that they can be used for entertainment purposes. No other court has addressed this issue and the authors of the Los Angeles Times piece urge the NCAA, universities, and college athletes to take the position that this ruling does not apply to amateur athletes. Over the upcoming college football season, it will be interesting to see how the Knight Commission exercises its influence on this issue and whether fantasy college football makes it to Opening Day, 2009.

Brent Baxley

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