CBS Scores Big Win in Fantasy Case

Times are not good for the intellectual property rights of athletes whose names are used for fantasy sports websites. In the wake of the Eighth Circuit's ruling in CBC Distribution v. MLBAM, 505 F.3d 818 (2007) [discussed here], the district court in Minnesota, concluded that CBS Interactive may use NFL players' names and statistics for its fantasy games, without any license agreement from the NFL or NFLPA. In so doing in this declaratory judgment action, it dismissed right of publicity claims by the respective sports organizations.

This result is not surprising, since the Minnesota court is in the Eighth Circuit and CBS chose the court in large part because of the MLBAM precedent, which has not been extended to any other circuit.

Judge Ann Montgomery, in CBS Interactive v. NFLPA, Civil No. 08-5097, focused on claims involving subject matter jurisdiction and transfer of the case to Florida (which is out of circuit), where the NFLPA filed a similar lawsuit. In classic civil procedure analysis, the court stated: "Taken in the light most favorable to CBS Interactive, the record shows that Players Inc., through its own contacts with Minnesota as well as the contacts of NFLPA made for the benefit of Players Inc., purposefully availed itself of the privilege of conducting activities in Minnesota and that Players Inc. should have reasonably anticipated being haled into court here.

It further held that "those publicity rights emanate from the individual players, a portion of whom reside in Minnesota, and some of the Group Licensing Agreements that transfer those
rights to NFLPA (and ultimately to Players Inc.) are executed by individual players who reside in Minnesota. In addition, the assertion of those publicity rights occurs on a national basis and affects Minnesota consumers of products and services related to the NFL, including consumers of fantasy football. Although Minnesota's connection to the controversy in this action may not be comparatively stronger or weaker than that of any other fora, there is a sufficient connection," for jurisdictional purposes.

Although the NFLPA basically lost its case at that point, the court did turn to the merits and added a final coup de grace when it granted summary judgment to CBS Interactive, noting that the facts dovetailed the MLBAM case. As the court concluded, "the package of player information that CBS Interactive uses is no different than that described by the Eighth Circuit-it consists of names, player profiles, up-to-date statistics, injury reports, participant blogs, pictures, images, and biographical information. [citation omitted]" and comes within the "ambit of the First Amendment."

In a strange argument, the defendants claimed that football is not the "national pastime" as is baseball, so therefore, the “there may be ... weaker First Amendment interests at stake in this case, . . . which would lead to a different balancing of First Amendment and publicity rights interests than in [MLBAM].” The court would not get into such a hair-splitting debate and the argument, in my mind, was an almost desperate attempt to distinguish this case from MLBAM. And of course, once can argue that pro football is even more popular than baseball.

Despite the protestations of the players and their unions and licensing agents, the First Amendment is alive and well in the area of fantasy sports.

[Note: I have a close family member who works at the legal department of CBS. However, that person was not involved in this case]