C.B.C. v. MLB Advanced Media: Fantasy Baseball and Free Speech

C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), is the decision that secured the legal foundation of the fantasy-sports industry. CBC operated online fantasy baseball games built on major league players’ names and real-world statistics; when its license lapsed and MLB Advanced Media — which had acquired the players’ publicity rights from their union — refused to grant a new one, CBC sued for a declaratory judgment that it could use the data freely. Writing for the Eighth Circuit, Judge Morris Arnold held that CBC’s First Amendment interest in disseminating publicly available information superseded the players’ right of publicity, affirming judgment for CBC. The ruling confirmed that names and statistics, the raw material of fantasy sports, are fair game for expressive use.

At a glance

• Case: C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), Nos. 06-3357 & 06-3358
• Court: United States Court of Appeals for the Eighth Circuit, on appeal from the Eastern District of Missouri
• Decided: October 16, 2007; rehearing en banc denied; certiorari denied, 553 U.S. 1090 (2008)
• Opinion: Judge Morris S. Arnold, for the majority (Loken, C.J., and Colloton, J.); Judge Colloton concurring in part and dissenting in part
• Subject matter: Whether a fantasy baseball operator may use players’ names and statistics without a license
• Holding: The First Amendment right to use publicly available names and statistics supersedes the players’ right of publicity

The parties and the road to declaratory judgment

CBC ran interactive online fantasy baseball games through its CDMSports.com service, in which participants draft rosters of real major league players and compete based on those players’ actual statistical performance. From 1995 through 2004, CBC operated under a license from the Major League Baseball Players Association. When that license expired, the union licensed the players’ publicity rights exclusively to Major League Baseball Advanced Media, the league’s interactive arm, which declined to license CBC.

CBC filed suit in the Eastern District of Missouri seeking a declaration that it could use the players’ names and statistics without a license. MLB Advanced Media counterclaimed for violation of the players’ right of publicity, and the Players Association intervened, adding a breach-of-contract claim based on no-use and no-challenge provisions from the earlier license. A federal magistrate judge, the Honorable Mary Ann Medler (the parties having consented to magistrate jurisdiction), granted summary judgment to CBC, and the defendants appealed.

First Amendment supersedes the right of publicity

The Eighth Circuit assumed for the sake of argument that CBC’s use satisfied the elements of a Missouri right-of-publicity claim, then held that the First Amendment overrode it. Citing the Supreme Court’s decision in Zacchini v. Scripps-Howard Broadcasting Co., the court explained that the right of publicity must be balanced against First Amendment considerations, and that here “the former must give way to the latter.” Several features of the case pushed the balance decisively toward free speech.

First, the court stressed the public character of the information. “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.” Second, the court rejected any distinction between informing and entertaining, quoting the principle — drawn from Cardtoons and Winters v. New York — that “[s]peech that entertains, like speech that informs, is protected by the First Amendment because ‘[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.’” Third, the court found the interests underlying the right of publicity weak on these facts: the players are handsomely compensated and enjoy no diminished incentive to perform, there was no risk of consumer deception, and baseball statistics are a matter of substantial public interest. Weighing all of this, the court concluded CBC’s expressive use prevailed.

The contract clauses and the preemption question left open

Two further issues shaped the decision. The Players Association argued that CBC had contractually agreed, in the expired license, never to use the players’ identities again and never to challenge their rights. The court held those no-use and no-challenge provisions unenforceable as against public policy, invoking the Supreme Court’s reasoning in Lear, Inc. v. Adkins that private agreements cannot be used to suppress the public’s access to information it is otherwise free to use. Judge Colloton dissented on this point alone; he agreed the First Amendment protected CBC’s use but would have held CBC bound by the contract it had signed.

The court also expressly declined to decide CBC’s alternative theory that federal copyright law preempts the state right of publicity. “Because we hold that CBC’s first amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity, we need not reach CBC’s alternative argument that federal copyright law preempts the players’ state law rights of publicity.” That deliberate reservation left an important question — the relationship between copyright preemption and publicity claims over statistical data — for another day.

Open questions

Because the court rested on a fact-intensive balancing rather than a categorical rule, C.B.C. did not fully settle how far the First Amendment protects commercial uses of athletes’ identities and statistics. Later decisions involving fantasy sports, video games, and player likenesses — most prominently the Hart v. Electronic Arts and Keller v. Electronic Arts rulings applying the transformative-use test to college-athlete avatars — reached different results on different facts, showing that outcomes turn heavily on how a player’s identity is used. The undecided copyright-preemption issue also remains a live theory in publicity litigation. And the rise of paid daily fantasy sports and sports betting has renewed questions about when the commercial exploitation of player data crosses a line the First Amendment will not protect.

Implications

• Public-domain data is protectable speech. Names, statistics, and other publicly available facts about athletes can generally be used without a publicity license.
• Entertainment is fully protected. Courts will not deny First Amendment protection simply because information is packaged as a game or entertainment rather than news.
• No-challenge clauses may not bind. Contractual promises never to use or challenge publicity rights in public-domain information can be unenforceable as against public policy.
• Outcomes are fact-specific. C.B.C. protects statistical fantasy games, but uses that replicate a player’s likeness or persona may be analyzed differently under transformative-use or other tests.

Frequently asked questions

What did C.B.C. v. MLB Advanced Media hold? The Eighth Circuit held that a fantasy baseball operator’s use of major league players’ names and statistical performance data was protected by the First Amendment, and that this protection supersedes the players’ right of publicity under Missouri law. CBC could therefore run its games without a license.

Why does the First Amendment protect the use of player statistics? The court reasoned that player names and statistics are readily available in the public domain, that speech which entertains is protected just like speech that informs, and that baseball’s statistics are of substantial public interest. Given how weak the players’ publicity interests were by comparison, the First Amendment prevailed.

Did the court decide the copyright preemption question? No. CBC also argued that federal copyright law preempts the state right of publicity, but the court expressly declined to reach that argument because it resolved the case on First Amendment grounds. The preemption issue was raised but left undecided.

Authorities and sources

• C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) (decided October 16, 2007; cert. denied, 553 U.S. 1090 (2008)). Justia; CourtListener.
• First Amendment balancing of the right of publicity in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), corroborated by Justia.
• Case background and cert-denial digest at Harvard Journal of Law & Technology.