By Scott Hervey

Just how valuable are baseball statistics? Apparently very valuable. In fact, baseball statistics are so valuable that CBC Distribution and Marketing, which has run the CDM Fantasy Sports leagues since 1992, sued Major League Baseball and challenged its ownership claim over player statistics.   In a matter which rose all the way to the United States Court of Appeals for the 8th Circuit, CBC agued that baseball statistics become historical facts as soon as a game is over, and that it shouldn’t have to pay for the right to use them. Major League Baseball claimed that the right of publicity belonging to major league baseball players makes it illegal for fantasy leagues to commercially exploit the statistical profiles of its players.


The Major League Baseball Players Association is the bargaining representative for Major League baseball players and is comprised of almost all persons who are employed as Major League baseball players. When a player joins the Players Association it can choose to grant the Players Association certain rights with regard to the player’s name, nickname, likeness, signature, picture, playing record, and/or biographical data.” 

CBC sells fantasy sports products online. Its fantasy baseball products incorporate the name, performance and biographical data of actual major league baseball players. Before the commencement of the major league baseball season each spring, participants form their fantasy baseball teams by “drafting” players from various major league baseball teams. Participants compete against other fantasy baseball “owners” who have also drafted their own teams. A participant’s success, and his or her own team’s success, depends on the actual performance of the fantasy team’s players on their respective actual teams during the course of the major league baseball season. Participants in CBC’s fantasy baseball games pay fees to play and additional fees to trade players during the course of the season.

The Players Association and Advanced Media, a company that, in 2005, entered into an exclusive license with the Players Association to use baseball players’ names and performance information for, among other things, providing fantasy baseball games on the MLB website, challenged CBC’s right to use the names of, and information about, major league players from the Players Association in connection with fantasy baseball games. The Players Association and Advance Media claimed that CBC violated the players’ right of publicity in their names and playing records as used in CBC’s fantasy games.

In Missouri, the elements of a right of publicity action include: 1) that the defendant used the plaintiff’s name as a symbol of his identity; 2) use without the plaintiff’s consent; and 3) with the intent to obtain a commercial advantage. These elements are almost exactly the same as California’s: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

Both the lower court and the Court of Appeals determined that CBC’s use of the players’ names and playing records implicate all three elements of Missouri’s right of publicity. The players’ names used by CBC are understood by CBC and fantasy baseball players as referring to actual major league baseball players. Additionally, the evidence showed that CBC’s use was without consent.

With regard to whether CBC’s use of the players’ names and statistics was “with the intent to obtain a commercial advantage,” the Court of Appeals noted that CBC’s use does not fit neatly into the more traditional categories of commercial advantage, namely using individuals’ names for advertising and merchandising in a way that states or intimates that the individuals are endorsing a product. Nevertheless, the Court of Appeals found that because CBC uses the baseball players’ identities in its fantasy baseball products for a project, CBC is using the identities for commercial advantage.

CBC argued that in the event it violated the players’ right of publicity, the First Amendment nonetheless trumps the right-of-publicity action provided by state law. CBC argued, and the court agreed, that the information used in CBC’s fantasy baseball games is speech. If previous court decisions have held that pictures, graphic designs, concept art, sounds, music, stories and narrative present in video games can constitute speech, so too can the players’ names, likeness, signatures, pictures, playing records and biographical information.

In determining that the players’ names and statistics are speech, the court found persuasive the fact that the information in question is readily available in the public domain. The court noted that it would be strange law that a person would not have a first amendment right to use information that is available to everyone. Further, the court the recognized the public value of information of the game of baseball and its players. The Court of Appeals noted that baseball is the “national pastime” and is followed by millions of people across the country on a daily basis.   The Court noted a California appeals court decision which held that the “recitation and discussion of factual data concerning athletic performance of [players on Major League Baseball’s website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”

Based on the above, and the fact that the facts in the instant case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals, CBC’s First Amendment rights in offering its fantasy baseball products supersedes the players right of publicity.

Scott Hervey is a shareholder with Weintraub Genshlea Chediak Tobin & Tobin and manages the firm’s trademark and copyright practice. For more interesting articles on intellectual property law, visit Weintraub’s IP weblog at