fantasy sports: stats in the public domain

The following question comes from my sports law class and below it is my response.

Companies that run fantasy sports enterprises have challenged the leagues and/or players associations as to who owns the right to the athlete's statistics/data. After researching the case, which side do you favor and what are you legal arguments for such a position. This decision has a big impact on the sports industry.

As a major fan of sports and a minor fan of big business I favor the free usage of sports’ statistics by anyone who wishes to group them for whatever game or activity they wish. Though companies like CBS Sportsline and Yahoo! are profiting off of the use sports statistics, they are utilizing public pieces of information which have freely been covered and posted in major news publications for literally a hundred. There is also no reason those sports leagues or players associations could not have their own fantasy leagues to draw people in and profit off of. Furthermore, I am baffled at players associations like the MLBPA which have become more greedy than is good for them by bringing a suit trying to stop the use of its players stats without compensation. I would think the free positive publicity given to the players and their sport as a result of fantasy sports would give cause for them to thank the fantasy sports industry instead of not seeking to make it pay.

The legal argument which supports my opinion and has been held by United States Court of Appeals for the Eight Circuit in a case involving CBC, a company offering fantasy sports, and Major League Baseball Players Association (among other parties). The players argued that their right-of-publicity, made possible under a Missouri law, where this case was first filed, was violated. CBC argued that the first amendment outweighs the Missouri Law and the stats should be allowed use by anyone. The Circuit Court cited the case of Zacchini v. Scipps-Howard Broad which said that “state law rights of publicity must be balanced against first amendment considerations.” And in this case the first amendment is given the nod. The Circuit Court stated later in its opinion that “the information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be a strange law that a person would not have a first amendment right to use information that is available to everyone.” The Players appealed this decision to the Supreme Court; however, it declined to take the case.

This legal argument of first amendment rights should hold in future attempts by players and leagues to halt the use of its statistics in fantasy games or in any public discourse really. If this decision had been reversed it would put into question any usage of statistics or even simply player or team name usage without permission or fee. It would bring into question whether a newspaper could publish a sports story or box score without paying a fee to the players association. Fantasy sports basically represent a more profitable way to cover sports and people sometimes purchase papers simply to check the statistics or read about sports. The players and leagues, now recognizing this higher profitability, have become interested in charging for the news they create. Charging for the right to cover the news has much broader implications beyond the sports industry that were rightfully left unexplored by this ruling. The Courts have correctly decided that this public information cannot be bought and sold.




Sources:

C.B.C. Distribution and Marketing, Inc., Plaintiff-Appellee, v. Major League
Baseball Advanced Media, L.P., Defendant-Appellant, The Major League Baseball
Players Association, Intervenor-Appellant. National Football League Players
Association, National Football League Players, Inc.; NBA Properties, Inc.; NHL
Enterprises, L.P.: NFL Ventures, L.P.; National Association for Stock Car Auto
Racing, Inc.; PGA TOUR, Inc.; WNBA Enterprises, LLC; International Licensing
Industry Merchandisers' Association, Inc., Amici on behalf of Appellants, Fantasy
Sports Trade Association; First American Real Estate Solutions, LLC; TransUnion,
LLC; Reed Elsevier Inc., Amici on Behalf of Appellee.
Nos. 06-3357/06-3358
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
505 F.3d 818; 2007 U.S. App. LEXIS 24192; 84 U.S.P.Q.2D (BNA) 1328; 35 Media L.
Rep. 2473
June 14, 2007, Submitted
October 16, 2007, Filed


Richey, Warren. “High Court rejects fantasy baseball challenge.” Christian Science Monitor. June 3, 2008. Web; Pg. 25.

All Star Review

Or is that revue?

Some random thoughts while watching some festivities from NBA All-Star Weekend.

• Licensing stuff is just getting silly. Changing H-O-R-S-E to G-E-I-C-O is S-T-U-P-I-D. Unfortunately I'm not really that surprised. So every year will this event have a different name?

• The NBA is somehow extremely more marketable than any of the other three major sports. Why is that? Is it the personalities of the athletes that are more interesting/flashy? It's probably got something to do with that and the game itself. Baseball is a slower, grinding type of sport, and the players don't tend to be as flashy. Those that are - say Ken Griffey, Jr. circa the early 90's - do become bigger stars, more like NBA players are. Football is probably the most team-oriented game of the four, so individuals don't stand out as much. Aside from big time QBs (Manning, Brady), players are hidden beneath those helmets and tend to disappear. And, let's face it, too many people don't really know or care about hockey, despite the best efforts of these guys.
  

• Even though I'd consider myself a baseball purist, I think I've decided that the Dunk Contest is better than the Home Run Derby. The variety and aforementioned personalities make the event much more exciting. Also, props to Nate Robinson and the Kryptonite theme and hopping over Superman. Opposite of props to Kenny Smith and Reggie Miller, who were quick to criticize many of the dunks. It's a dunk contest, not Game 7 of the Finals. Relax.
  

• Listening to Shaq talk to Craig Sager on the bench during the 4th quarter of the game about it possibly being his last All-Star Game made me realize that he's one of the only athletes that really broke into the league when I was old enough to start really caring about sports (1992, I was 7 years old) and is still around. As far as my life when it comes to being interested in sports, the Big Aristotle has been a constant. How could you not miss this guy?
  

Thank you two times

So, you're entering some sort of building, and there's two sets of doors. You walk into one, there's a small entry way, and then there's another set a few feet away. Say you're walking behind somebody and they open the first door for you. You say thank you, naturally. Then, they open the next door. Do you say thank you again? Do you have to repeat your gratitude or is it just implied that you are grateful by your first thanking? Is it considered bad manners to not say thank you again? I don't think a second full thank you is necessary. Some sort of secondary recognition is probably required. Maybe a head nod or something like that. The person opening the doors for you should understand that the first thank you carries over to the entire encounter. Saying thanks once establishes you as a polite person, and the door opener should be happy with that. I mean, they had to open the door for themselves, anyway. They don't have a lot of room to be snobby about it.

Short Circuit City

I may be the biggest, but I'm definitely not the brightest tool in the box. There are things I know about - sports, comic books, Tina Fey - and things I don't - politics, religion, current affairs, anything that is really actually important. Because of this, I am writing with a shaker full of salt lodged between the letters on my keyboard.

The economy sucks. Duh. We've known this for months and nothing has really changed to make us think any differently. And just as we all decided that Yes We Could, we come to the realization that 2009 has the potential to be even worse. Hooray. Did I understand that America was struggling? Yes, but only on the most basic of fronts. But that all changed today. Something happened that hit me dead between the eyes.

Circuit City closed its doors. Well, not all of its doors, but over 560 of them. That's right, Best Buy's overshadowed little brother is laying off thousands of employees after filing for bankruptcy. Now, I've never shopped at Circuit City. Not once. I've always been a Best Buy man myself. But ever since I can remember I've seen those gaudy red blocky building fronts from the road. I've had friends stand in line there at 5 a.m. to buy laptop computers. I've watched their terrible commercials for years. I've recycled dozens of their ads in the weekend newspaper. And now they're gone.

So this is what the economic crisis is all about. Just down the road an IHOP closed down. A place more popular on Sunday mornings than a free money machine in Las Vegas is now dark. I've heard that the closing is just temporary, and that it might not even be for economic reasons. But it got me thinking. Tonight I was talking to some friends about Netflix and Red Box and all the alternative ways to rent movies these days. I hardly know anybody that actually goes to the movie store to rent movies anymore. Could you imagine all Blockbusters just shutting down? While some of this has to do with alternative outlets and marketing strategies, the weak economy has to be to blame for some of it, right?

Businesses are darkening all over America. Just think of your favorite shopping center of 10-15 stores. In the coming years they could one by one be going dark, like a storefront sign with some of the letters burnt out.

No Circuit City, IHOP or Blockbuster? Troubling times indeed, my friend.

Funny or Die...I'll take funny, please

If you don't recognize any of the performers in this video from funnyordie.com, you probably shouldn't be reading this...or living.

http://www.funnyordie.com/videos/c0cf508ff8/prop-8-the-musical-starring-jack-black-john-c-reilly-and-many-more-from-fod-team-jack-black-craig-robinson-john-c-reilly-and-rashida-jones

Cheering China

The Chinese are putting their home-court/field/country advantage to good use. The constant raucous support of their athletes during these Olympics is different from the support we often see at home. I've written before that the US has traveled well at these Games, providing audible support for athletes in several venues (The Regroup, August 9). But the Chinese people's interest in their athletes is a little different. They seem to live and die on the performances of their competitors, no matter what sport they are watching.

I can't imagine dozens of Americans glued to their TVs to watch shooting or weight lifting back home. But that's what I see here in offices, subway stations and restaurants. Of course we give ample attention to the bigger Olympic sports - swimming, track and field, gymnastics, and even basketball - but we tend to forget about many of the others. Not here. So much of the excitement that comes from sports seems, well, foreign, for the Chinese. At the softball game I went to last week, any ball hit in the air, whether it was a pop up to the pitcher or a can of corn to right field, was greeted with a smattering of "ohhs" from much of the crowd, as if they were watching fireworks ascend into the sky. And yesterday, when defending champion Liu Xiang had to pull out of the 110m hurdle event with an injury, citizens were moved to tears. I don't think many Americans felt their eyes water when Tyson Gay was injured a couple months ago.

I think these differences stem from the fact that we get to watch world-class athletes in multiple sports on an almost daily basis. Some Americans might find this rampant Chinese nationalism to be pompous or juvenile, and that is understandable. But maybe they are just deprived of some of the wonders of sports that we take for granted. Pompous and/or proud, the the Chinese are showering all of their athletes with support during these Olympics.

Tiger Tracks

There are Tigers everywhere.

There's been no zoo outbreak. Detroit's baseball team is not on a mid-season barnstorming tour of the East, and the most famous golfer on the planet hasn't been cloned and scattered around China. But still, I've seen my fair share of Tigers here in Beijing.

It turns out the representation of the University of Missouri extends much further than the 60 or so volunteers that arrived on July 2nd. I have stumbled across a number of people with connections to Mizzou, and I'm sure I haven't even scratched the surface.

Last week I was walking around the Olympic Green with some of my co-workers when we ran into a guy in a white floswimming.org shirt wielding a video camera. He asked us where we were from, we told him Mizzou, and he surprised us by telling us he was an '07 grad. It turns out it was Garrett McCaffrey, a former swimming teammate of two of our own volunteers, Allison Bennett and Kayla Bowcutt.

When me and some other students briefly met Cullen Jones (The Regroup, August 12) at NBC's Today Show, he asked us where we were from. After learning we were from Mizzou, he immediately asked if we knew Bennett Clark, another former Mizzou swimmer. It turns out Jones and Clark trained together over the past year.

There are several athletes competing this year that spent at least a couple years at Mizzou. Linas Kleiza hit a game-winning three in the waning moments of Lithuania's win over Argentina; Christian Cantwell won a silver medal in the shot put; Ben Askren will open up his Olympic campaign in the wrestling freestyle 74-kg qualifications on Wednesday.

But the connections reach out past the athletes themselves. I met Mizzou grad Dan Pierce, now a director of communications for Anheuser Busch, at a Club Bud opening ceremonies party last week. And let's not forget the no-doubt dozens of alumni journalists here covering the Games, including ESPN's Pat Forde, who is anchoring the Worldwide Leader's coverage of Michael Phelps. (Note to self: would tying an anchor, from a boat or the set of the Today Show, actually make a difference in any of Phelps' races?)

And let's not forget about the close-to 9,000 University of Missouri School of Journalism anniversary pins slowly permeating a venue, subway car or security line near you. I'm more surprised to find somebody without one of the pins than I am to see them hanging off ID lanyards. While Michael Phelps may break records and be known as the greatest Olympian ever, it's clear the University of Missouri is the most dominant force at the Olympics.