Freedom of Speech Trumps Baseball Players’ Publicity Rights

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Even though baseball players established a cause of action for violation of their rights of publicity by a fantasy game provider (CBC), the First Amendment trumped the right of publicity, the U.S. Court of Appeals in St. Louis has ruled. CBC sold fantasy sports products via its website, e-mail, mail, and the telephone. Its fantasy baseball products incorporated the names along with performance and biographical data of actual major league baseball players.

Right of Publicity

The players offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law. In Missouri, the elements of a right of publicity action included (1) the use of an individual's name as a symbol of his identity, (2) without consent, and (3) with the intent to obtain a commercial advantage.

The parties agreed that CBC's continued use of the players' names and playing information after the expiration of a 2002 licensing agreement was without consent. The symbol-of-identity element was satisfied because there was no doubt that the players' names used by CBC were understood by it and its fantasy baseball subscribers as referring to actual major league baseball players. In addition, because CBC used baseball players' identities in its fantasy baseball products for purposes of profit, their identities were being used for commercial advantage.

First Amendment

Though the dispute was between private parties, the state action necessary for First Amendment protections was present because the right of publicity claim existed only insofar as the courts enforced state-created obligations that were never explicitly assumed by CBC.

Pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games had been held to be speech entitled to First Amendment protection. Similarly, CBC used the “names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player” in an interactive form in connection with its fantasy baseball products.

The recitation and discussion of factual data concerning the athletic performance of major league baseball players commanded a substantial public interest, and, therefore, was a form of expression due substantial constitutional protection, according to the court.

The right of publicity provides incentives to encourage a person's productive activities and to protect consumers from misleading advertising. But major league baseball players were handsomely rewarded and could earn additional large sums from endorsements and sponsorship arrangements, the court noted.

There was no danger that consumers would be misled, the court found, because the fantasy baseball games depended on the inclusion of all players and thus could not create a false impression that some particular player with “star power” is endorsing CBC's products.

No-Use Agreement

The court, with one judge dissenting, held unenforceable a no-challenge provision of the parties’ 2002 agreement and a no-use provision, which prohibited CBC from using players' names and playing records after the expiration of the agreement.

A warranty of title in the agreement provided that the players association was “the sole and exclusive holder of all right, title and interest” in and to the names and playing statistics of virtually all major league baseball players. Because the players association did not have exclusive “right, title, and interest” in the use of the information, the association breached a material obligation that it undertook in the contract, the court determined. CBC thus was relieved of the obligations that it undertook, and the association could not enforce the no-use and no-challenge provisions.

The October 16, 2007 decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., will appear at CCH Advertising Law Guide ¶62,693.