Just posted on ootp boards, MLB loses appeal

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Go Tribe just posted on ootp boards that MLB has lost their appeal...

http://www.ootpdevelopments.com/boar...d.php?t=156025

Go Tribe
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Join Date: Dec 2001
Posts: 1,148

MLB loses appeal!!!
http://www.rotoworld.com/content/fea...rticleid=29239

The Eighth Circuit Court of Appeals today upheld CBC Distribution¹s previous ruling against Major League Baseball Advanced Media to use statistics without a license in all of its fantasy sports games. The decision was unanimous on the rights of publicity and First Amendment issues, however, the decision in the St. Louis, Missouri court came back 2-1 on another issue, possibly opening the door for one last fight on this historic judgement.

All three appeals judges -- Chief Judge Morris Arnold, Judge James Loken and Judge Steven Colloton -- sided with the earlier judgement against MLBAM as it pertains to the rights of publicity in Missouri and the application of the First Amendment in this case. However, Judge Colloton cast a dissenting vote on a breach of contract by CBC, stating that the company previously signed a contract that contained language that MLBPA did own the players rights to be licensed. ³That CBC later decided it did not need a license, and that it preferred instead to litigate the point, does not relieve the company of its contractual obligation,² Colloton wrote.

The decision reaffirms what a district court stated 18 months earlier, that players do not have a right of publicity in their names and playing records as used in CBC¹s fantasy games, and that even if they did own those rights the First Amendment would trump them. All three judges agreed with this assessment, which was written by U.S. Magistrate Judge Mary Ann Medler on Aug. 8, 2006.

³Today's decision from the 8th Circuit Court of Appeals is a major victory for the fantasy sports industry, fantasy sports players, and most importantly, the protection of free speech and expression,² said Glenn Colton, lead attorney for Wilson Sonsini Goodrich & Rosati, who wrote an amicus brief for the Fantasy Sports Trade Association on behalf of CBC¹s case. ³Specifically, the Court ruled that the interests protected by the First Amendment to the United States Constitution outweigh any alleged harms to professional athletes from the use of their names in fantasy sports games. Notably, the Court went out of its way to point out how handsomely players are already rewarded for their performances and endorsements. In the final analysis, the decision drives another nail in the coffin of Major League Baseball and its players association's attempt to wrest control of the fantasy sports industry from the pioneers that worked long and hard to build and create the thriving national hobby millions enjoy today.²

The 2-1 decision does create an opening for one last fight by MLBAM and the MLB Players Association. MLBAM could ask for a hearing of all nine judges in the Eighth Circuit Court of Appeals, or it could appeal this decision all the way to the U.S. Supreme Court. The fact that First Amendment rights are involved in this case could be reason enough for the Supreme Court to hear this case.

³I think they almost have to see if they can appeal it to the Supreme Court after all they¹ve gone through to this point and just see if the Supreme Court will hear this or not,² said Charlie Wiegert of CBC Distribution. ³But we¹re extremely thrilled and happy that the appeals court upheld the lower court decision. It¹s a big win for us and the entire fantasy industry and a bad day for the leagues and the players associations. It¹s a great day for the entrepreneurs of the world.²

On the merits of rights of publicity and the First Amendment, this decision was entirely in CBC¹s favor. The court wrote that:

³The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v.
Scripps-Howard
Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to the latter. First, 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.

³We also find no merit in the argument that CBC's use of players' names and information in its fantasy baseball games is not speech at all. We have held that Œthe pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games¹ is speech entitled to first amendment protection.²

Ironically, it was a previous case * Gionfriddo vs. Major League Baseball * that worked against the leagues and players associations in this case. In that case, MLB won a case against former major league players for use of their statistics from past seasons, stating that the statistics are of public interest. The judges wrote:

³A California court, in a case where Major League Baseball was itself defending its use of players' names, likenesses, and information against the players' asserted rights of publicity, observed, ŒMajor 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 ... The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today's performances.¹ Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001). The Court in Gionfriddo concluded that the Œrecitation and discussion of factual data concerning the 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." Id. We find these views persuasive.²

The judges also weighed heavily on the side of CBC when discussing the rights of publicity, stating that fantasy sports certainly do not hurt a players¹ marketing value. They wrote:

³The facts in this case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals. Major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with "star power" is endorsing CBC's products.²