High Court Will Not Review Baseball Players’ Right of Publicity Claims

This posting was written by John W. Arden.

A ruling that a fantasy game provider’s First Amendment rights to use major league baseball players’ names, biographical data, and performance statistics overruled the players’ rights of publicity was left standing by the U.S. Supreme Court. On June 2, the high court denied the players’ petition for review.

Left standing was an October 16, 2007 decision of the U.S. Court of Appeals in St Louis in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. (CCH Advertising Law Guide ¶62,693).

In that case, major league baseball players brought suit against the fantasy game provider for using their names and playing information after the expiration of a 2002 license agreement authorizing such use. The game provider had sold fantasy sports products through a website, e-mail, mail, and the telephone.

The players produced sufficient evidence to establish a cause of action for violation of their rights of publicity under Missouri law. However, the information used by the game provider was speech entitled to First Amendment protection, according to the appeals court.

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

In their petition for review, Major League Baseball Advanced Media and the Major League Baseball Players Association asked (1) whether the unauthorized use of Major League baseball players’ identities in violation of Missouri law was insulated from liability by the First Amendment and (2) whether the game provider’s breach of its contractual obligations not to use or challenge the players’ identity rights after expiration of a license was insulated from liability by the First Amendment.

The petition is Major League Baseball Advanced Media v. C.B.C. Distribution and Marketing, Inc., Docket No. 07-1099, filed February 22, 2008, denied June 2, 2008.

Further details on the appeals court decision appear in an October 21, 2007, Trade Regulation Talk posting.