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High court rejects fantasy baseball challenge

The effect: Made-up leagues can keep using names and statistics of real players without paying licensing fees.

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For example, if a New York City merchant seeks to boost sales of T-shirts or mugs by placing a picture of Yankees shortstop Derek Jeter on his shirts and mugs, Mr. Jeter has a right to receive some level of payment for his role in promoting the sale of shirts and mugs.

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But Jeter has no right to compensation whenever a sportswriter publishes a thrilling portrayal of his ninth-inning heroics. Sports journalism is protected by the First Amendment, even though the article and photograph will be used to sell newspapers and earn a profit for the publisher.

In the CBC case, a federal judge and a panel of the Eighth Circuit Court of Appeals in St. Louis ruled in favor of CBC's fantasy league. The appeals court said players' publicity rights were trumped by the First Amendment since the players' names and statistics are widely available on the Internet and in newspaper sports pages.

In urging the Supreme Court to take up the case, lawyers for the baseball players said the case wasn't about free speech. They said professional athletes have a right to control the commercial exploitation of their identities and to reap financial rewards from that exploitation.

"CBC is offering a product – fantasy baseball games – for sale. That product incorporates players' identities to entice consumer interest in what would otherwise be merely another prediction game," wrote Washington lawyer Virginia Seitz in her brief on behalf of Major League Baseball Advanced Media.

"Those names may not be incorporated ... primarily for commercial purposes into a product – be it a coffee mug, a poster, a board game, or an Internet game – without consent," Ms. Seitz wrote.

Lawyers for CBC countered that the company uses only publicly available statistics that reflect the players' historic, factual playing records. They said the federal judge and the Eighth Circuit properly balanced the competing interests of the players against the First Amendment free expression rights of the fantasy baseball company.

The dispute over CBC's use of the information for fantasy baseball arose in 2005 after the Major League Baseball Players Association granted an exclusive license for all interactive media – including fantasy baseball – to Major League Baseball Advanced Media.

The company had been formed in 2000 by baseball team owners to operate the website As part of its Internet operations, Advanced Media offered fantasy baseball games that competed with CBC for fans.

From 1995 to 2004, CBC paid a licensing fee to the players' association for the use of the players' names and statistics in the fantasy league. But in 2005, Advanced Media refused to grant any future license to CBC.

CBC went to court, arguing that it didn't need a license to operate a fantasy baseball league using publicly available information about players. The courts agreed.