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November|December 2005
"Loser Pays" Doesn't By Herbert M. Kritzer
$tats By Alan Schwarz
Outranked and Underrated By Norman Bradburn

$tats

Tell baseball to dream on.

By Alan Schwarz

BASEBALL PROVIDES US with some of life's more elegant symmetries. Three strikes, three outs. Nine innings, nine men to a side. And rather than players running about in apparent chaos—think of the moments after a quarterback yells, "Hike!"—the diamond offers an uncommon balance of order ruling over bedlam. This sense of proportion surely appeals to attorneys, for whom the law provides the harmony of logic and procedure. What is interesting is when the worlds of baseball and the law meet.

Earlier this year, C.B.C. Distribution and Marketing, Inc., a St. Louis company that operates "fantasy" baseball leagues for fans, filed suit in United States District Court in Missouri against Major League Baseball Advanced Media, baseball's Internet arm. CBC contended that it had the right to run its games without obtaining a MLBAM license to use major leaguers' names and game statistics.

The suit is big news in the world of fantasy leagues, which allow fans to divvy up players and create their own imaginary teams that compete against each other using, for example, Derek Jeter's actual batting average with the New York Yankees. Fanciful as it sounds, these games have exploded into big business and are played by an estimated 15 million adult Americans who spend upwards of $150 million for companies like CBC to keep rosters, statistics, and so on. Baseball contends that fantasy-league operators must pay to use players' names in this commercial context. CBC claims that the names and statistics are part of the public domain, and the company intends to prove it through a lawsuit.

It's easy to mock the matter at hand—"Honey, the kids are fighting over baseball cards again!"—because baseball statistics are part of our national parlance. Numbers ranging from Ted Williams's iconic 1941 batting average of .406 to the home run totals of utility infielders have been detailed and deliberated for generations. To some, The Baseball Encyclopedia is a second Bible.

Major League Baseball has spent much of the last century bumbling across the legal landscape—it's had more court motions thrown out than opening-day baseballs—so many fans reflexively consider this "Who owns the stats?" controversy an easy one to decide in CBC's favor, the legal equivalent of a hanging curve. But right as the fans' eyes grow wide and they itch to wallop the matter into legal certitude, it darts defiantly out of reach.

This case is not about batting averages. It's about the nature of celebrity in our new, wired world. Separate the issues from national-pastime kitsch and you realize that there's a legitimate dispute here. The tug-of-war among First Amendment rights, copyright law, and something called the right of publicity, which is really the right to control the use of your identity in commercial ventures, raises surprisingly nettlesome questions. For example, if Jeter goes 2 for 4 with a home run on Tuesday, isn't that merely a fact that is in the public domain and can be packaged and sold on Wednesday? Then again, though he's a public figure, I can't use Jeter's name to generate revenue for my barbecue sauce without paying for the right. So can fantasy-sports operations use Jeter's name, along with his statistics, for free to generate revenue for their Internet enterprises? If not, then why are newspapers—which are about as commercial as commercial gets—allowed to sell these same facts? At what point does, or should, such use fall outside the protections of the First Amendment?

Major League Baseball paid $50 million to the MLB Players Association for the rights to use players' names, images, and similar attributes for any commercial purpose on mobile devices and the Internet, so you can bet baseball will throw a high, hard one at anyone who infringes on those rights. But what do those rights include? When you realize that the answer probably turns on a doctrine as murkily named as the right of publicity, you know an umpire is in order.

FIRST, ANY ATTEMPT BY BASEBALL TO CLAIM OWNERSHIP of player statistics would almost certainly backfire. Almost a decade ago, the National Basketball Association sued Motorola, which marketed a wireless pager that delivered real-time scoring updates to subscribers, on the basis that it owned the copyright to game statistics. (Major League Baseball and other professional sports leagues filed friend-of-the-court briefs supporting the NBA's stance.) Motorola countered that while the television and radio broadcasts of games had long been protected by copyright, game scores and statistics were simply facts. In other words, the video of Michael Jordan hitting a three-pointer could be copyrighted, but the fact that he hit the shot, reached 32 points for the game, and put his Chicago Bulls ahead 82-77 was not. The U.S. Court of Appeals for the Second Circuit agreed with Motorola, wresting control of real-time news and player statistics from the sports leagues and releasing them into the public domain. While league sources whisper that baseball is itching to test the legal line between newsworthy facts and broadcasts, it will almost certainly not do so in the CBC lawsuit.

Baseball will instead rely on the right of publicity, a phrase that, as luck would have it, was coined in a suit involving baseball. In 1953, after the Topps Chewing Gum company issued trading cards featuring ballplayers' pictures without the players' permission, the U.S. Court of Appeals for the Second Circuit ruled that baseball players—and by extension all celebrities—were entitled to control the use of their identities in commercial ventures. Heeding that decision, CBC, the fantasy game provider now locking horns with baseball, does not use player pictures on its website. It also does not use team logos, which are trademarked properties of the clubs. It presents the players' names, teams, and game statistics in plain type—for example, PEDRO MARTINEZ 14 WINS 8 LOSSES 2.76 ERA—as facts, just as any newspaper does.

The courts, however, have made a distinction between the media and commercial games. In 1970, the Major League Baseball Players Association sued two statistics-based game companies in Minnesota state court over their use of players' names and performance statistics, calling it misappropriation of property under the right-of-publicity umbrella. The players association won the suit and has since controlled such use through licensing.

But there's a delicious twist: In 1996, several former major leaguers—most notably Al Gionfriddo, a former Brooklyn Dodger and 1947 World Series hero—sued baseball in California state court over baseball's use of his name and statistics in materials like videos and game programs. He claimed such use violated his right to publicity. Baseball argued successfully that it had a right to use the information under the principle of freedom of the press. The California Court of Appeal agreed with baseball, ruling that the First Amendment protected "mere recitations of the players' accomplishments," and that the public was "entitled to be informed and entertained about our history." The court also agreed that baseball was not advertising any product but presenting historical facts—just as CBC's fantasy games are not advertisements, the company argues, but presentations of historical facts. That baseball seemingly flip-flopped on this issue has not been lost on anyone involved in the CBC case.

THE CASE INVOLVES DIFFICULT ISSUES that can best be resolved with new and more pragmatic interpretations of law. With the media landscape changing every year, the distinction between news and commercial property is less clear than ever.

From Glamour to Time, walk into almost any magazine's cover-idea meeting, and for every mention of the word "newsworthy," you will probably hear 10 editors squawk, "But will it sell?" Magazines are allowed to use celebrities' names and pictures to, in effect, advertise the magazines, while other businesses are not. And while I'm not one to argue with Jefferson and Madison, they certainly were more interested in protecting Tom Paine than Tom Cruise. Somewhere in between—let's call him Tom Seaver—a logical contradiction arises. A newspaper can derive revenue from the compilation and publishing of baseball players' statistics, while an Internet site cannot derive revenue from, uh, the compilation and publishing of baseball players' statistics.

If the court agrees with MLB that fantasy sports leagues and the like are misappropriating the players' names and celebrity, it will cast doubt on the legality of other matters we thought were long settled. Could Las Vegas still trade on Tiger Woods's name by offering odds and taking bets on whether he will win the Masters? Presumably not, as this would be unlicensed poaching of Woods's celebrity. Take Trivial Pursuit, a game that sells questions about famous actors and authors without compensating them: Why wouldn't that suddenly be illegal? Cut through the rhetoric, and what is at issue here is the extent to which the rights of stardom are shared—between the star who earns it and the public that bestows it.

Alan Schwarz is the senior writer for Baseball America magazine, and the author of The Numbers Game: Baseball's Lifelong Fascination with Statistics.

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