October 8, 2008 1:43 PM

Who Owns Sports Stats? Maybe A Question for the Supreme Court

Posted by Zach Lowe

The Am Law Daily's fantasy baseball leaguemates pay $129 to CBS Sportsline to host our esteemed league. CBS, and other hosts, pass those fees onto fantasy players in part because professional sports leagues historically have charged the sites as much as $2.5 million annually for the right to use professional players' names and statistics.

Those fees for us fantasy nerds might disappear--or at least decline--if courts find that statistics and names are in the public domain and free to be used in fantasy games under the First Amendment. One court, the U.S. Court of Appeals for the Eighth Circuit,  already ruled that way last year in a landmark case involving baseball statistics and player names. But the issue is far from settled, says Marc Edelman, a visiting assistant law professor at Rutgers who also owns Sports Judge, a Web site he set up to settle disputes between fantasy rivals.

Edelman, who previously worked at Dewey Ballantine and Skadden, Arps, Slate, Meagher & Flom, spoke on the subject Tuesday night at Day Pitney at an event organized by the New York County Lawyers Association.

The problem, Edelman said, is that different states have very different tests to balance the First Amendment against a celebrity's right to publicity--or the right to protect their ability to make money off of their name.

That's why CBS, building on the Eighth Circuit's ruling in the baseball case, filed its suit challenging the National Football League's licensing fees last month in federal district court in Minnesota--which happens to fall under the Eighth Circuit's jurisdiction. And that's why the NFL countersued six days later in federal district court in Miami, where the right to publicity enjoys broader protection against the First Amendment.

"The Supreme Court really needs to hear one of these cases," Edelman said Tuesday. "Because we're going to see a lot more of them."

The high court denied Major League Baseball's request for cert in the Eighth Circuit's case, despite briefs drafted by Sidley Austin on baseball's behalf and an amicus brief for the NFL drafted by Weil, Gotshal & Manges. The venue shopping in the NFL-CBS case shows the high court is going to have to settle the issue eventually, he says.

CBS wants the venue shopping to stop. On Monday, they filed a motion to dismiss the NFL's Florida complaint, claiming the case should be heard in Minnesota, since CBS filed first. CBS called the NFL's move to have the case heard in Florida "questionable," and said it stemmed only from the league's recognition that "litigating this dispute in Minnesota would undoubtedly be fatal to its continuing attempt to monopolize the fantasy football industry."

The NFL case has its share of legal heavyweights. The NFL players union is represented, as usual, by a Dewey & LeBoeuf team led by Jeffrey Kessler, head of the firm's global litigation and sports litigation departments--and once a rumored candidate to replace the late Gene Upshaw as head of the NFL Players' Association. A team from Dorsey & Whitney led by Michael Lindsay is repping CBS.

 

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