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June 2, 2008 2:38 PM

Major League Baseball Strikes Out at Supreme Court

Posted by Brian Baxter

The U.S. Supreme Court has denied an appeal today by Major League Baseball to hear a case that would have required fantasy sports providers to obtain a licensing agreement from the league before selling fantasy games to customers.

Representing the league were litigation partners Patrick Kuhlmann and Michael Aprahamian from Milwaukee's Foley & Lardner, MLB's longtime outside counsel (the relationship stems from league commissioner Bud Selig, a Milwaukee native). IP partner Jeffrey Kass from St. Louis's Gallop, Johnson & Neuman and litigation partner Jay Summerville of Armstrong Teasdale were also part of MLB's legal team.

The case began in 2005 when St. Louis-based CBC Distribution and Marketing, the owner of CDM Fantasy Sports, was unable to obtain a license from an MLB subsidiary allowing it to use the real names of MLB players for use on its fantasy baseball Web site. CBC sued the league in federal court in St. Louis, claiming that it had a First Amendment right to use player names.

IP litigation partners Rudolph Telscher, Jr., and Kara Yancey from St. Louis's Harness, Dickey & Pierce represented CBC. Neil Richards, a professor in First Amendment and privacy law at St. Louis's Washington University, also served as counsel to the plaintiffs.

Players' organizations from several major North American sports leagues supported MLB's position against CBC. Even the Major League Baseball Players Association, usually no friend of league management, joined the case, claiming that CBC violated players' right to profit from the commercial use of their name.

IP litigation partner Russell Jones, Jr., employment litigation partner Karen Glickstein, and employment partner Monica Fanning, from Kansas City, Miss., telecommunications firm Shughart Thomson & Kilroy, represented the players union. They were joined by Sidley Austin appellate partner Virginia Seitz and Donald Aubry and Steven Fehr of Kansas City's Jolley, Walsh, Hurley, Raisher & Aubry.

A federal district court judge found in favor of CBC in 2006. In October 2007 a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit in St. Louis upheld the district court's ruling in a 2-to-1 decision.

The ruling led some media companies like ESPN, which signed multi-million dollar licensing agreements, to renegotiate their deals with MLB. The league and its players petitioned the Supreme Court for certiorari in the spring and the National Football League Players Association, represented by Weil, Gotshal & Manges appellate partner Caitlin Halligan, filed an amicus brief in support of their baseball brethren.

But the Court declined to hear the case today.

Download the Eighth Circuit's decision in favor of CBC.

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