Court Victories Last Week for Fantasy Baseball and Mayor Bloomberg

Last week, the United States Supreme Court declined to accept an appeal of an 8th Circuit decision that upheld a fantasy baseball company’s right to use, without license, the names of, statistics and information about major league baseball players in connection with its fantasy baseball products. Fantasy sports are estimated to generate $500 million in revenue per year from more than 19 million participants, according to the Fantasy Sports Trade Association.

The circuit court had held that CBC’s first amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity. The Supreme Courts denial of the petition for writ of certiorari in Major League Baseball, et al. v. C.B.C. Distribution & Marketing effectively allows the circuit courts decision to stand. C.B.C. Distribution and Marketing, Inc., brought the action for a declaratory judgment against Major League Baseball Advanced Media, L.P., to establish its right to use, without license, the names of and information about major league baseball players in connection with its fantasy baseball products.

Advanced Media counterclaimed, maintaining that CBC’s fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball.

According to the circuit court’s decision, CBC sells fantasy sports products via its Internet website, e-mail, mail, and the telephone. Its fantasy baseball products incorporate the names along with 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 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.

In affirming the District Court, the 8th Circuit referred to baseball as being the national pastime and quoted a California case noting [m]ajor league baseball is followed by millions of people across this country on a daily basis … The public has an enduring fascination in the records set by former players and in memorable moments from previous games. Time will tell whether the Supreme Court’s refusal to hear the case encourages other websites to incorporate the use famous people without getting their permission.

As aptly pointed out by the circuit court, the information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone.

Turning to Mayor Michael Bloomberg’s quest to stanch the flow of illegal firearms into New York City from other states, last Monday, Jay Wallace, a gun dealer accused by New York City of illegally selling handguns that made their way to New York, backed out of his trial in U.S. District Court on the day it was set to begin.

As a result, a default judgment was entered against Adventures Outdoors and the business will likely be forced to submit to a special master overseeing its sales practices.

In 2006, the city sued Mr. Wallace and 26 other gun dealers, mainly in the South, claiming their lax or illegal gun sales created a public nuisance in New York City. Two cases have been dismissed and two sellers have gone out of business. Two more are set for trial in September. The gun dealer’s defense against the suit took a fatal blow two weeks ago when Judge Jack B. Weinstein of the Eastern District of New York ruled the case would be decided by an advisory jury — meaning the judge, not a jury, would ultimately decide the outcome.

Mr. Wallace’s lawyer, John Renzulli, said that the default was a procedural maneuver to rush the case up to an appellate court to seek an order requiring Judge Weinstein to dismiss the case or hold a trial by jury.

Since Michael Bloomberg became mayor in 2002, every gun homicide in the city has been committed with an illegal gun, police say. More than 300 people were killed in New York City by illegal guns last year, with nearly all of the guns coming from out of state, said Bloomberg.

Notwithstanding the events in federal court, Mr. Wallace still has pending his suit against Mayor Bloomberg in Georgia in Superior Court of Cobb County. Former U.S. Rep. Bob Barr filed a $400 million lawsuit against Mayor Bloomberg in apparent retribution for the City’s federal lawsuit.

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