Fantasy dispute in on-deck circle for Supreme Court

Justices to decide whether to hear appeal by MLB

Fantasy baseball owners use the names and statistics of Manny Ramírez and other players to grade their teams' performance. (Greg Fiume/Getty Images)

WASHINGTON - The Supreme Court justices were spending part of their time last week on fantasy baseball, but not because summer is near and they were bored with the legal work.

Rather, the justices were deciding whether to take up a billion-dollar dispute over whether for-profit fantasy games on the Internet have a free-speech right to use the names and performance statistics of famous athletes.

If the justices vote to hear the appeal from Major League Baseball, the outcome could have a far-reaching effect, including on the entertainment industry. If the justices were to rule that fantasy sports games have a free-speech right to use the names of famous players, it could cast doubt on some licensing deals for celebrities.

Even if the court lets stand the lower court's ruling in favor of free speech for the for-profit websites, it could encourage other websites to incorporate the use of famous people without seeking their permission.

The court will probably announce today whether it will hear the appeal.

It has been decades since the Supreme Court last weighed a clash between the "right to publicity" and the right to free speech. And since then, the Internet has made it far easier for others to make money by using the names, faces, and images of celebrities.

For now, however, the question is whether baseball players and their statistics are public knowledge, and thus free to be used by all, or whether they remain the private property of Major League Baseball.

Fantasy baseball began a quarter-century ago as a game among friends. As would-be "owners" or "managers," a participant selected his or her own team of players from the major-league rosters and watched daily box scores to see how those players did in reality.

By the mid-1990s, however, fantasy sports had become an industry of its own on the Internet. An estimated 15 million people spend about $1.5 billion a year playing fantasy sports. Web-based companies charge $30 or more to join a fantasy league, and some games offer big cash prizes to the winners.

The legal dispute arose four years ago when Major League Baseball Advanced Media, which represents the players and owners, signed licensing deals for fantasy games with a few big companies, including Yahoo, ESPN, Fox Sports, and CBS Sportsline. At the same time, the MLB ended earlier deals with dozens of leagues, games, and websites that had offered fantasy games.

One of the jilted providers, C.B.C. Distribution and Marketing in St. Louis, went to court and last year won a double-header victory in the US court of appeals there. The judges ruled that the fantasy-game provider had a First Amendment right to use the names and statistics of major-league players, and it was free to ignore the earlier licensing deal.

If that ruling stands, it could disrupt "billions of dollars" in licensing deals in professional sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. "Celebrities and athletes have enforceable publicity rights," they argued, and the First Amendment has never been understood to give other companies a right "to exploit players' identities for commercial gain."

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores are available to the public. "All our clients are doing is disseminating the same information that newspapers put in the sports pages every day," said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major League Baseball. The dispute involves famous names, not mere statistics, it contends.

Neither side can cite a Supreme Court precedent that resolves the matter. The justices last ruled in a right-to-publicity dispute more than 30 years ago in the case of the Human Cannonball.

Hugo Zacchini made his living being fired from a cannon and landing in a net 200 feet away. He sued a TV station in Ohio that had taped his entire 15-second performance at a county fair and ran it on the evening news. The Supreme Court ruled in favor of Zacchini in 1977 and said the First Amendment did not give others a right to make use of a performer's entire act.

But the 5-to-4 opinion did not decide how judges are to weigh future disputes between the publicity rights of performers and the public's right to use public information. For that reason, some lawyers say there is a good chance the court will agree to hear the dispute between Major League Baseball and the fantasy leagues.