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Wednesday, November 08, 2006
Paper Release: Fantasy League Use of Players' Names and Stats

Last August, I discussed the ruling of the Eastern District of Missouri in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., which held that fantasy league operators do not violate the players' right of publicity by using their names and performance statistics without consent. I'm pleased to announce that my recently completed article entitled, The Use of Players’ Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, will be published in the Winter Issue of Penn State Law Review. An unedited draft of the article can be downloaded here. I encourage you to read it and I welcome your comments.

My article contains an in-depth analysis and application of right of publicity law to fantasy sports leagues, including a discussion about the business and economics of the fantasy sports league industry, the policy considerations involved and the application of the First Amendment. My article explains why the federal district court wrongly decided the case, and attempts to define workable standards in a confusing area of law. The article will be published in February, and the Eighth Circuit Court of Appeals is scheduled to hear the case in late spring.

Michael McCann is currently working on a paper entitled, The Wonderlic Test for the NFL Draft: Linking Stereotype Threat and the Law, which can be downloaded from the link to Michael's articles on SSRN. Michael was a guest at my law school today, and each of us presented our papers. I want to thank Michael on behalf of our student body and faculty, who thoroughly enjoyed his presentation.


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Blogger WMUpsci_student -- 11/08/2006 10:20 PM  

I'm excited to read your new article. Also, I will be directing interested students to the link so they can prepare for the sports law panel here at WMU, which I am really excited for.

Blogger WMUpsci_student -- 11/08/2006 10:23 PM  


I have not read your paper yet but am sure to do so in the next few days. I'm wondering if your thoughts on the use of players' identities by fantasy leagues extends to the use made by betting companies, that use players' identities for bets on the best goalscorers, assists, touchdown's, etc.?

If you already address this issue in your paper, I apologise.

Anonymous Luis Cassiano Neves -- 11/09/2006 12:14 PM  


I'm not sure what you mean by a "betting company".

Blogger Rick Karcher -- 11/09/2006 6:09 PM  

Not to put words in his mouth, but I assume Luis was referring to online and Las Vegas sports books. How would your theory address the use of a player's name in sports gambling? For example, is it a violation of a boxer's right of publicity for the sports book at the Mirage to take bets on fights without permission from the fighters?

Anonymous Anonymous -- 11/09/2006 6:22 PM  

Some would argue that fantasy leagues are akin to gambling, so the uses of the identities are very similar. In my paper I discuss a spectrum of commercial advantage, with non-commercial use at one end of the spectrum [uses protected by the First Amendment, which are newsworthy purposes, entertainment (i.e. films, movies) and literary (fiction and non-fiction)], and pure commercial use at the other end of the spectrum(sponsorship, advertisements and endorsements). There are many uses that fall somewhere in-between (trading cards, video games, fantasy leagues), and in those situations courts should look at whether the defendant's product or service is dependent upon the players' identities for its existence. Fantasy league operators simply don't have a product to sell without the players.

In my paper, I distinguish Trivial Pursuit and Jeopardy (i.e. "How many home runs did Hank Aaron hit?"). The success of a fantasy team over the course of the season and the outcome of the fantasy league game is totally dependent upon the players' actual on-field performances, whereas the outcome of the Trivial Pursuit game is determined based soley upon the participant's knowledge of baseball's historical facts. Also, Jeopardy still exists without asking questions about Hank Aaron. So while one could argue that Jeopardy and Trivial Pursuit are still obtaining a "commercial advantage" by using the identities, it's de minimus. Casinos would then be more analogous to Jeopardy and Trivial Pursuit, but an online betting company that is solely dependent upon the players for its existence obtains a commercial advantage in using the players' identities.

But if you cut through it all, this fantasy league issue is simply a case of somebody not having to pay for the content that makes up the product it is selling. In our society, anybody who sells a product or service must buy the components and supplies that form the basis of his product or service. Why do we feel so strongly that there is some great public interest here that needs protection such that the content doesn't need to be paid for? If the mom and pop drug store can't compete with Walgreen's because it can't pay the fees that aspirin companies charge, we don't feel sorry for it -- and I would argue there's a much greater public interest at stake in aspirin than there is in fantasy leagues and gambling.

There's this notion that the names and stats are in the newspaper and are thus out in the public domain for anybody's use. But public domain is irrelevant for right of publicity purposes. All "public domain" means by definition is that certain information is not protected by copyright, trademark, patent -- and, believe it or not, the RIGHT OF PUBLICITY. So, the more a celebrity's name or identity is out in the public domain, the more famous that person is, and the more we should be scrutinizing third party use as opposed to justifying the use on the basis of public domain.

Blogger Rick Karcher -- 11/09/2006 7:57 PM  

"I discuss a spectrum of commercial advantage, with non-commercial use at one end of the spectrum [uses protected by the First Amendment, which are newsworthy purposes, entertainment (i.e. films, movies) and literary (fiction and non-fiction)], and pure commercial use at the other end of the spectrum(sponsorship, advertisements and endorsements)."

I don't think you've adequately defined the non-commercial aspect of your spectrum. You cite protected First Amendment activity as the classic example, but the interplay between the First Amendment and the right of publicity is far from clear. After all, Zacchini itself held that part of a newscast was not protected by the First Amendment from a right of publicity claim.

You hang your hat on the Topps case from 1953, but this case is undertheorized. After all, what does the baseball card do that MacMillan's Baseball Encyclopedia doesn't? You cannot say that the latter is meant for informational purposes, because they both convey the same information. In addition, both are sold for a profit, but this is admittedly not controlling, see Time Inc. v. Hill. So why is the book protected under the First Amendment and baseball cards not?

Also, you are wrong to say that public domain interests are relevant to the right of publicity question. As the comment to Sec. 46 of the Restatement to Unfair Competition makes clear, the right to control your identity must be balanced against the public's interest in the free flow of information.

Anonymous Anonymous -- 11/09/2006 9:02 PM  

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Blogger Rick Karcher -- 11/10/2006 6:02 AM  


I've made a proposal about how to bring more clarity to a confusing area of law. Your response is basically saying, I'm wrong because it's a confusing area of law.

The First Amendment protects "newsworthy purposes". It is also very well-established that making a profit does not destroy a newsworthy purpose. Now whether that should be the case is an interesting debate, but that's an entirely different paper in and of itself. My paper just assumes that's a dead issue, because it is.

Your MacMillan book is protected all day long because it's a literary purpose. There is really no debate about whether books and magazines deserve protection. The PURPOSE of books is to encourage free expression and to inform the public. That's not the purpose of fantasy leagues. You open up the encyclopedia book because you want to know how many homeruns Hank Aaron hit in a particular year. You log in to your fantasy league website because you want to buy players, make trades and see how the team you created is doing. You buy trading cards because you want to obtain the complete set, get your favorite player, put it away in your closet and sell them 20 years from now, or whatever. The more I discuss this, the more I'm starting to think that fantasy leagues serve even a greater commercial purpose than trading cards.

You're focusing on the information and not how that information is being used, which is what the court did and which is contrary to right of publicity law and the First Amendment as well. The First Amendment essentially protects certain USES of information. The First Amendment does not protect "the free flow of information" -- that's too broad and that's how you want to define it. Not only is that standard not the law; to me, that's creating less clarity.

Athletes and celebrities don't have copyright or trademark protection in their names and likenesses. Right of publicity law is their only protection, and it should be analyzed in the same light as copyright and trademark law, which permit certain "fair uses". Fantasy league use would not qualify as a fair use. You could write the sequel to Harry Potter today (my 4th grade son is doing that in school), but the minute he sells it, he's not protected. We could say Harry Potter is in the public domain too. I can discuss Harry Potter on this blog, and CNN can do that too because these particular uses are protected.

You could also get 20 of your buddies together and gather and compile all the stats from newspapers or the internet, and have your own fantasy game. You could have each person contribute $100, and the winner at the end of the season gets to keep the pot. Once you market it to the public, start charging fees (or don't charge fees but profit from advertising revenue), or use it as a way of drawing consumers to other business lines, you're done.

Will somebody just explain to me why the players shouldn't be entitled to negotiate a license fee at whatever the market will bear? There is no monopoly concern here. In fact, it's very pro-competitive. Yahoo, ESPN and CBS Sportsline are all paying fees at negotiated market rates, and it's a very efficient market. I don't hear any consumers complaining!! The only one complaining is the one that can't (allegedly) compete.

Blogger Rick Karcher -- 11/10/2006 6:12 AM  


Anonymous correctly interpreted my question (thank you!).

I basically agree with your position even though my knowledge of american law is weak at best. Nevertheless, the exact same issues arise here in Europe and the relevant general legal principles are similar.

Even though we've had some decisions that were favorable to the athletes, there is great resistance to the idea that "image rights" (akin, I belive, to your right of publicity) may in fact correpond to a broad scope of protection.

My initial question was not innocent. I am currently working on the subject and your views, as well as that of Anonymous, have proved invaluable.

Thank you.

Anonymous Luis Cassiano Neves -- 11/10/2006 6:53 AM  

Hi Rick,

Who decides what news is worthy?

This is what I believe will be the flaw in your suggestion to make order in the subject.

For example, The "E" channel, making a T.V show on Madonna's new adopted baby, should pay the singer a fee for the use of her name?

The channel will argue that this is news and news worthy, and one can argue that this is just a gossip,

So some Fantasy/sportbook operators can claim that the use of the names of players for fantasy sports are on the base of news worthy just as Madonna’s adopting a new baby or some other actor getting divorced or married.

Regarding your claim," there are no Fantasy sports with out the Players names", I could argue that There are no "celebrity News" without celebrities, and actually I couldn’t make any news without the use of people names.

I don’t see why they need to be paid for that…

Actually, if you had a Google ad in your blog, I could argue that you should compensate Larry Brown (although he rally doesn’t need this  ) , cause by the use of his name you are gaining money.

Anonymous Milanot -- 11/10/2006 6:57 AM  


If the E channel is just saying what has happened recently with Madonna and her adoption, then the PURPOSE of the show is newsworthy because it tells the world what happened. It's not a matter of determining what is "worthy". It's like a told Anonymous, the focus is on the use and the purpose for the use. Madonna would not appear on the show without a fee. But if she doesn't appear, and the purpose is not to tell the world what happened, then you could still argue that the show is akin to a film or book which contains an element of artistic expression and creation. You can't say that fantasy leagues have that element.

The point I make about fantasy leagues being solely dependent upon the use of players' identities just goes to whether (once you are in the "commercial" realm of non-protected F.A. uses) you want to draw the line somewhere between fantasy leagues and jeopardy -- because they are both commercial uses.

Anything on the blog is protected because the PURPOSE is to express ideas, akin to books.

Blogger Rick Karcher -- 11/10/2006 8:42 AM  


You make a persuasive case, but two comments.

1) Your theory does not explain Zacchini. The U.S. Supreme Court held that the local news channel had a newsworthy purpose, but the replay of Zacchini's human cannonball act was not protected under the First Amendment. Why?

2) I disagree with your no-monopoly argument. You state that granting the players a property right here is "pro-competitive," presumably in the antitrust sense. How is that possibly true? Something is pro-competitive if it expands consumer choice. Granting a property right here LIMITS consumer choice as evidenced by the facts of this case.

Your theory gives the players the right to create a monopoly over fantasy sports leagues. In fact, they have exercised that right by granting one entity (MLB) the exclusive rights to use players' names in connection with fantasy leagues. That MLB has chosen to allow multiple competitors today does not mean that they won't eliminate competition in the future. If you want a similar example of this, look at video games, where the NFLPA granted EA Sports (maker of the Madden game) an exclusive license over player likenesses, effectively destroying the competing game.

Before society grants such a monopoly-creating property right, it should have a sound reason for doing so. For example, patent and copyright grant monopolies to incentivize private innovation, which overall, the theory goes, more than compensates for the costs associated with limitations on the free flow of ideas.

What corresponding benefit does society get here from granting the players the property right at issue? There is simply no need to incentivize athletes to become athletes. They make millions as it is and any revenue generated from fantasy sports would be a pittance compared to their salaries. See Restat. of Unfair Competition. As you note, Yahoo pays $3 million for their MLB fantasy license. Three million dollars divided up among all MLB players is indeed a pittance.

Thus, we have a real cost associated with this property right - monopolization - and no corresponding benefit. Because I view this case as essential a policy question about the allocation of intangible property rights, that settles it for me.

Anonymous Anonymous -- 11/10/2006 9:44 AM  

One more thing:

You state: "If the E channel is just saying what has happened recently with Madonna and her adoption, then the PURPOSE of the show is newsworthy because it tells the world what happened."

Doesn't a baseball card to exactly? You've just defined a PURPOSE as newsworthy if "tells the world what happened," which I presume you mean conveys historical facts. That's exactly what a baseball card does. It conveys the historical facts of a player's career. How is that not newsworthy then under you definition?

What you are doing is taking how consumers use baseball cards and extrapolating newsworthiness or non-newsworthiness from that, i.e., because people collect them they're not newsworthy. So, under that theory, if people started collecting and trading old editions of Sports Illustrated (and people already do this by the way), then it would no longer have a newsworthy purpose?

At bottom, both baseball cards and newspapers package information and sell it. The latter is in a form we recognize, so its protected. The latter is simply seen as a "kid's toy," and therefore not protected. But that does not mean there's a real theory underlying the distinction.

(I note that some people argue that the difference is that the "press" deserves special constitutional protection, but that's just question-begging about what constitutes the "press.")

Anonymous Anonymous -- 11/10/2006 9:55 AM  

So exclusive licenses constitute illegal monopolies? I'm just not following what you are saying. And the mere "threat" of monopolization gives a third party a claim? And courts should be determining how much money people can make? So what are your proposed legal standards to aide courts in making all of these determinations?

Blogger Rick Karcher -- 11/10/2006 10:02 AM  


Sorry i still can agree with your claim,

A newspaper is making money from the names of the people who are mentioned in it, the same appeals with the fantasy games.

you gave me an example about drawing the line between Fantasy and jeopardy, but about drawing the line between fantasy and Newspapers?

That was my point, a newspaper makes money from people names (off course it has a larger inventory and not only needs some players names, he can use names from all industries),
I can't see the differences between the two cases.

Anonymous Milanot -- 11/10/2006 10:07 AM  

"So exclusive licenses constitute illegal monopolies?"

Is that in any way what I said? I think my argument was clear that society should carefully examine whether or not the benefits of granting a monopoly outweigh the harms. Implicit in that is the recognition that some monopolies, i.e., patents, are, on the whole, beneficial.

With respect to licenses, an exclusive license is not an illegal monopoly, but there is an antecedent question: should society grant the licensor an exclusive property right in the first place?

You have not presented ANY policy rationales for why the property right should be granted here. At best you've hinted a mishmash of different theories that do not appear to withstand scrutiny here. I have presented a downside to recognizing the property right: the threat of monopolization. The threat of monopolization does not, in your words, "give third party's a claim" against the athletes. What it does is present a policy reason for not granting the athletes the property right in the first place. Until you clearly articulate a policy reason that outweighs the danger of monopolization, there's no reason to recognize the property right.

My preferred solution is simple: An athlete should have the exclusive right to goodwill associated with his name in that his name or identity cannot be used in the endorsement or advertisement of products without his consent. This not only reflects a balance of the societal interests just discussed, it also creates an interested third party to police fraud against consumers.

Other than exclusive endorsement rights, athletes (and anyone else) should have no other cognizable "right of publicity" claims. They do, of course, retain the other privacy torts, which relate to mental distress, not the allocation of property rights.

Anonymous Anonymous -- 11/10/2006 11:30 AM  

Hi Rick, I enjoyed your paper. A few comments:

Is it possible to see fantasy sports services as targeted newsgathering services? Certainly their editorial content, although geared towards enhancing gameplay, is subject to First Amendment protection. Their reporting of player statistics is also clearly protected. Even though the Web site offers players the ability to pick and choose players for their teams, the site is essentially offering a targeted news gathering service.

The crux of the issue is that the service converts these statistics into points for the users and tallies their team totals, which under your "purpose of the use" argument constitutes a commercial use. I think you are probably right in this respect - that is clearly the commercial activity participants are using the sites for, because to do it on your own is a real pain. And the value of this commercial activity is clearly tied to the identity of each individual player.

But perhaps there is a counterargument. The fantasy sports Web site is gathering information in the public domain and converting it to a commercially viable product. What if I decided (much like US Weekly) to simply take pictures of sports figures in public, package them into a magazine (with some minimal editorial content), and sell it? This is a pretty bad analogy, I know, but it is the best I could come up with.

One other question: what if a player, such as Barry Bonds, refuses to allow his image/identity to be licensed? For example, for many years LaVar Arrington simply appeared as No.56 for the Redskins in Madden games. Although his name wasn't used, the game attempted to mimic his skill level through his attributes in the game, and it was clearly a representation of LaVar. If players are granted rights in fantasy sports, this could result in a hold-up problem down the road where certain star players would only sell their rights for fantasy purposes to the highest bidder. This isn't something your paper necessarily needs to address, but I find it interesting to consider.

I didn't bother to register, but this is Robby Forbes from UVa. Mike McCann tells me you have agreed to be a part of the conference I am putting together on Feb. 2. I'm looking forward to hearing you guys speak.

Anonymous Anonymous -- 11/10/2006 12:07 PM  

Thanks for all the great comments. Robby, I'm looking forward to your conference.

Blogger Rick Karcher -- 11/10/2006 5:50 PM  

Sorry to arrive so late but just a couple of comments and questions from someone who has never been to law school:

1. Someone said earlier on here gues "might" be considered a form of gambling. It would seem to me that any organized activity with fixed rules which offers money to the winners is gambling - - particularly if the money to the winners comes from the losers.

2. Might I get around the right of publicity conundrum if I started a fantasy league and did not use the NAMES of the players but used their statistical achievements. In an obviously oversimplified example, suppose I "identified for the purposes of my league" the QB for the Indianapolis Colts as gninnaM notyeP. It's an admitedly thin veil, but it isn't his name.

3. When a baseball card company signs a contract with a player - or a union representing all players in a sport? - what are they paying for? The right to publish a picture? The right to put the "stats" and biographical info on the back? Or the association of the picture with the "stats" and bio information on the back? Or something else?

Anonymous The Sports Curmudgeon -- 11/13/2006 11:33 AM  


Do you know who owns the right of publicity for college athletes? The school? Is it in the "contract" somewhere (letter of intent)? Obviously the rules prohibit a player from profiting on it while their in college, but could a player prevent a school from doing the same?

Anonymous Anonymous -- 11/14/2006 9:18 PM  

That's a great question regarding amateur athletes. My take on it is that (as you said) the player, via the scholarship and the NCAA regs., is clearly prohibited from receiving endorsement income. I don't see any legal argument that the school or the NCAA owns the rights to their names and likenesses. The NCAA licenses to the video game companies the right to use the team logos, stadiums, uniforms, numbers, etc. So the NCAA would argue they are not licensing their identities, and I think the better claim is against the video game manufacturer that when it creates computer graphic images that look exactly like the individual players, it is using the players identities without the players' consent. It definitely wouldn't surprise me if one or more star amateur players challenge it in the near future.

Blogger Rick Karcher -- 11/15/2006 10:05 AM  

There's a remedies problem with an amateur athlete suing. While he's an amateur he accept any monetary judgment. He could perhaps get an injunction, but what is the benefit in that, especially because the players probably feel it's pretty cool to be in a video game.

Of course, once the players graduate, turn pro, or otherwise lose their eligibility they can sue for monetary damages. But if they won it would screw over their teammates who are still in college who would no longer get to be in a video game.

Anonymous Anonymous -- 11/16/2006 8:36 AM  


I assume you meant to say that an amateur player "can't" get a monetary judgment while he's an amateur? If that's what you meant to say, why do you say that? I assume you would argue that the judgment is the equivalent of endorsement income? I'm not sure that it is.

Secondly, even if you're right, the judgment wouldn't come for years following the filing of suit. Thus, a player could file suit as a soph. and be graduated by the time he receives the monetary judgment.

Blogger Rick Karcher -- 11/16/2006 9:51 AM  


You're quite right that my objection is most likely moot because the case would probably not end before the player loses eligibility. But do NCAA rules also forbid asking for money that if received would be against the rules? E.g., is it also a rules violation if a player requests money from an agent, but the agent refuses?

As for whether a player could accept a monetary judgment like this and maintain amateur status, it's probably an unsettled question of NCAA "law." But I doubt the NCAA would allow because it appears to be money obtained on account of athletic status.

Anonymous Anonymous -- 11/16/2006 2:48 PM  


excellent article. i have only one point, and that is on page 21 or 20 you have a sentence to the effect of "in most publicity cases, it is oftentimes a difficult task determining the financial loss." (all misquoting is my fault, i couldn't paste from acrobat) I suggest removing either "most" or "oftentimes."

great article!


Blogger John -- 11/16/2006 10:13 PM  


The NCAA rules prohibit players from receiving money from agents, they don't specifically address requests. And there is no NCAA rule prohibiting receipt of monetary judgments. One could also argue that such a judgment represents compensation for a wrong that was committed against them (i.e. theft of their identities), and not money received on account of their athletic status.


Thanks for the kind words, and good catch!

Blogger Rick Karcher -- 11/17/2006 5:45 PM  

thank you

Anonymous kurtlar -- 2/13/2009 1:32 PM  

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