In October 2007 the Eighth Circuit ruled that a fantasy baseball company has the First Amendment right to use baseball players’ names and statistics. This decision allowed the fantasy baseball company to use the players’ information without a license and without compensating the players. The court determined that although the fantasy baseball company was violating the players’ right of publicity by using their information without a license, the right of publicity is preempted by the First Amendment. The Supreme Court denied cert.

CBS Interactive (CBS) had paid a licensing fee to the NFL Players Association for the use of player statistics in fantasy football games. Following the Eighth Circuit’s decision, CBS stopped paying that licensing fee. In September CBS filed suit in Minnesota, which is in the Eighth Circuit, seeking a declaratory judgment that “the Players Association may not seek to control the use of player statistics in fantasy games and may not continue to extract money from CBS Interactive for the use of publicly available football statistics.” A few days later, the NFL Players Association filed a lawsuit against CBS in Miami, which is in the Eleventh Circuit, contending that CBS filed its lawsuit in the wrong jurisdiction. The Players Association’s position is that the use of the rights of NFL players to generate revenues without compensating the players is unfair. The litigation is still pending as the courts figure out how to move forward.

It is clear why the NFL Players Association does not want to litigate this case in the Eighth Circuit: based on the precedent set in the fantasy baseball case, the Players Association has little chance of success in the Eighth Circuit. However, the Eighth Circuit decision is not binding on courts outside that circuit. The Players Association, therefore, has a better chance of success in the Eleventh Circuit if it can get the case litigated there. If the Eleventh Circuit reaches a different decision than the Eighth Circuit, it is more likely that the Supreme Court will grant cert in light of the circuit split. Until the Supreme Court resolves this issue, we can expect to see more fantasy litigation in the various circuits.

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