Linda A. SharpUniversity of Northern Colorado

Brendan Dwyer

2009 Scholarly Conference on College SportSession 7 – 3:00pm-3:30pm

UNC

Purpose of Presentation

Recent Events: Right of Publicity ruling: C.B.C.

Distribution and Marketing v. Major League Baseball Advanced Media (2007)

CBSsports.com extension of their college fantasy football game to include the exact names and likeness of intercollegiate athletes (2008)

The purpose of this presentation is to discuss the application of the CBC case to collegiate fantasy football and basketball games that use the exact names, images, and likenesses of current college athletes.

Fantasy Sports

Ancillary sport service heavily-associated with statistical output of individual athletes Participants act as general managers or

owners of their own athletic team Primarily an online activity that is

completely customizable, interactive, and involves nearly every major sport, from the National Football League to college field hockey.

Several connection points for participants including:

Fantasy Sports

Profile of the Industry & Participants 29.9 million adult participants in the

United States and Canada (Fantasy Sports Trade Association [FSTA], 2008)

Economic impact of over $4 billion annually $800 million spent directly on fantasy sports

products & services Additional $3 billion spent on media related to

the hobby Average fantasy participant is a highly-

coveted consumer Caucasian Male, 18-45, with a Bachelor’s

Degree and an annual household income between $75,000-$95,000

A Google search of College Fantasy Sports resulted in over 54,000 unique web pages

U-sports.com 13th year of fantasy college football and

basketball Three pricing tiers from $16.95 to $29.99 per

team CFFL.com – College Fantasy Football League

10th year $25,000 in prizes; $24.95 per team

PreProSports.com 8th year Pricing structure unknown

College Fantasy Sport

CBSsports.com 8 different sports with several services within

each sport Over 3.2 million unique members with over

565 million fantasy sport-specific web page views (FSA, 2007)

College fantasy football since 2003 Completely free activity No player likeness or number Tim Tebow = QB Florida

In 2008, CBS announced that player names and likenesses will be used on CBSsports.com Michael Hurcomb of CBS equated the transition

to the inventions of "fire, electricity, telephones, planes, and cars."

College Fantasy Sport (cont.)

Knight Commission on Intercollegiate Athletics Executive Director, Amy P. Perko: "I think it's clear that

the CBS program is in violation of [the NCAA[']s] amateurism rules” (¶6, Moser, 2008).

Co-chairman, Gerald Turner: “College athletes in fantasy games and video games may seem trivial to some, but these and other forms of new media pose new challenges to the long-held distinction between commercial activity featuring teams and that which focuses on individual athletes” (Knightcommission.org, 2008)

Member, Len Elmore: “Invasion of commercialism appears to be inevitable given new technologies that are intersecting with consumer demand for interactivity and reality-based gaming” (Knightcommission.org, 2008)

Amateurism & Fantasy Sport

Amateurism is a long-standing and deeply-rooted principle upon which intercollegiate athletics is built (NCAA Constitution, Article 2.9).

The bylaws of the National Collegiate Athletic Association (NCAA) prohibit companies from trading on the names, likenesses, or images of specific athletes (NCAA Constitution, Article 12.5–12.5.2.2).

The NCAA’s response: Sent a formal letter to CBS Formed a committee to look into the matter Asked CBS to remove the image of Graham Harrell

(Texas Tech) from their website promotion Believe that the C.B.C. ruling extends to college

athlete’s right to publicity (Moser, 2008)

Amateurism & Fantasy Sport (cont.)

NCAA spokesman Bob Williams: “because of the added exposure fantasy sports

can bring the student-athlete, the NCAA does not intend to stand in the way of the fantasy game for now.” 

“the amateurism legislation was written ‘before new media’ and does not properly address a situation like this,” (Wall Street Journal, 2008).

NCAA President Miles Brand: “There is no such ready and obvious answer in

this instance. Where we have no standing with regard to publicity rights - as in this case - to bring legal action, we must use other means to try and protect the concept of amateurism,” (Double-A Zone Blog, 9/8/08).

Inconsistent Response

CBS & the National Collegiate Athletic Association (NCAA) Key corporate partner for decades Responsible for over 90% of the NCAA

annual operating budget Men’s Basketball Tournament television rights

($6.2 billion through 2013) CBS plans to launch a College Fantasy

Basketball game within the next yearCan the NCAA afford to jeopardize their

relationship with CBS over college fantasy sports?

A Lucrative Partnership

Warren & Brandeis’ seminal law review in 1890 Necessity to protect the “right to be let alone” “Gossip is no longer the resource of the idle

and of the vicious, but has become a trade, which is pursued with industry as well as effrontery”

Need a more liberal legal remedy beyond the protection of property interests

“In every such case the individual is entitled to decide whether that which is his shall be given to the public”

The Right to Privacy

Haelan Laboratories v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) Rival companies battled for right to publish

baseball cards with pictures of pro baseball players

Court used term “right of publicity” for the first time

“In addition to and independent of that right of privacy…a man has a right to grant the exclusive privilege of publishing his picture”(p. 868).

The Right to Publicity

Currently 30 states recognize the right of publicity by common law and statute

Restatement (3rd) Unfair Competition § 46 “one who appropriates the commercial

value of a person’s identity by using without consent the person’s name, likeness or other indicia of identity for the purposes of trade is subject to liability”

The Right to Publicity (cont.)

C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media Seller of fee-based online fantasy sports products Had purchased licenses from MLBPA to use player

names and statistics (agreements in 1995 and 2002)

Agreement expired Dec. 31, 2004 MLBPA agreed to sell MLBAM exclusive rights to use

player names and statistics CBC rejected offer of buying sublicense from MLBAM

and sued for declaratory judgment to use “without license, the names and information about major league baseball players in connection with its fantasy baseball products” (505 F.3d at 820)

CBC v. MLBAM (cont.)

District Court granted summary judgment for CBC No violation of players’ rights of

publicity under Mo. Law First Amendment right to use names

and stats superseded any potential infringement of right of publicity

8th Circuit affirmed in 2007 (505 F. 3d 818) However, players do have a valid right of

publicity action under Mo. Law But, “CBC’s first amendment rights in

offering its fantasy baseball products supersede the players’ rights of publicity” (p.824) Even though CBC used stats for commercial

purpose, use was still speech with an entertainment purpose entitled to First Amendment protection

CBC v. MLBAM (cont.)

The balancing test—1st Amendment v. Right of Publicity “it would be strange law that a person

would not have a first amendment right to use information that is available to everyone” (p. 823 citing Cardtoons)

“substantial public interest” in expressions relating to baseball stats

Players had minimal interest in owning rights of publicity because they were already sufficiently encouraged to create stats because of high salaries and endorsement deals

CBC v. MLBAM (cont.)

What is the meaning of the CBC decision?

How broadly to extend the “public domain” argument? Should the use of the stats here be

considered educational or entertainment v. commercial?

Should the players’ rights of publicity be diminished based on how much they are paid and whether their ability to earn a living is affected?

Should CBC control a right of publicity case by a college athlete? Elements of a prima facie case of action

1)the use of the plaintiff’s identity-Yes

2) identity has commercial value--Yes

3)defendant appropriated commercial value for purposes of trade—Not educational or informative

4) lack of consent—no consent to exploit identity

5)resulting commercial injury—unjust enrichment by defendant

Lack of Consent Issue

S-A agrees to be bound by NCAA rules which relate to amateurism

NCAA states bylaws being violated by use of player likenesses so is S-A free to bring claim since NCAA agrees that this use violates bylaws?

If use considered not to violate NCAA bylaws should S-A still have right to argue lack of consent athletic scholarship is unconscionable contract of

adhesion an exploitation of right of publicity regardless

What is the meaning of the CBC case? Regarding the First Amendment right

CBC court was not neutral as it began its balancing test

Began with proposition that “it would be strange law that a person would not have a first amendment right to use information in the public domain”

Presumptive right to use public domain information Is court’s language relating to “first amendment”

and “public domain” broad enough to suggest that this holding should go beyond specifics of case?