In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, 2007 WL 2990366 (C.A.8, MO), the Eighth Circuit upheld the right of C.B.C. (a third party business entity) to use Major League Baseball players’ names, their performance statistics and biographical information without the players’ consent (Major League Baseball Advanced Media licensed the rights to exploit players’ identities in interactive media from the Major League Baseball Players Association). The Court determined that C.B.C.’s right of free speech under the First Amendment trumped the ballplayers’ right of publicity. The Court cited with approval Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400 (2001) for the proposition that information about baseball and its players “commands a substantial public interest.” This public interest outweighed the players’ publicity rights under Missouri state law, particularly in light of the great compensation and endorsement/sponsorship opportunities available to players. (As an aside, this raises the question whether a third party’s fantasy baseball game involving minor league players -- who earn a relative pittance – would be treated similarly.) Further, as all players were used in the fantasy game, C.B.C. did not mislead consumers into thinking that its game was endorsed by star player(s). That is to say, the result may well have been different if C.B.C.’s game were billed as “David Ortiz Presents Fantasy Baseball.” The Court also found for C.B.C. on an ancillary contract claim, ruling that C.B.C.’s use of the players’ identities did not violate a “no-use” and “no-challenge” provision of its contract with the Major League Baseball Players Association (as the predecessor entity to Major League Baseball Advanced Media) which survived the contract’s termination in 2005. The U.S. Supreme Court declined to acept the case on appeal, so the lower court's decision stands.
In CBS Interactive Inc. v. National Football League Players Association, Inc. and National Football League Players Incorporated, 2009 US Dist. LEXIS 36800 (U.S.D.C., MN), the District Court relied heavily on the C.B.C. Distribution case in upholding CBS Interactive’s right to use professional football players’ names, statistics, images and biographical and other information in its fantasy game without permission or license from the NFL Players Association.