June 5th, 2009

Venue Shouldn’t Matter in Player Stats Disputes

Friday, June 5th, 2009

The choice by Yahoo! to file suit against the NFL Players Association in the same federal court circuit that has ruled favorably in two previous fantasy sports cases makes sense not only as a way to keep things on friendly ground, but also to avoid a Florida district that has been unkind in the past. An FSB.com review of the various court filings, however, suggests that the venue might not be as important as you’d think.

Obviously, the Eighth Circuit — which includes both the Minnesota district court that found for CBS and the eastern Missouri court in which the CBC case was filed — is the logical choice for any fantasy company logging such a licensing challenge.

On the other hand, a 2000 suit brought by Gridiron.com against the NFLPA in the southern district of Florida ended with a ruling in favor of the NFLPA’s licensing rights. The fact that the NFLPA chose this same district in which to file a countersuit last year against CBS makes it clear that the group likes its chances there based on that Gridiron.com ruling.

That countersuit, of course, was swept out as part of the decision in CBS’ favor back in March — which remains under appeal - so we won’t know how the Florida court might have ruled this time around. The key difference, though, is that the Gridiron.com case centered on the use of player likenesses — photos — whereas those since have made official mention only of player statistics and information.

In the 2000 suit, Gridiron.com apparently signed contracts with “over one hundred and fifty” NFL players for the rights to their likenesses in its fantasy football game and posited that it didn’t need to pay licensing fees to the NFLPA for those rights. The NFLPA — which had specific exclusive licensing deals with about 97 percent of the league’s players at the time — had little trouble defeating that notion in court.

The decision says only that Gridiron.com could not use six or more player photos without owing fees to the NFLPA and makes no specific mention of player stats or biographical or other info. The filings submitted by CBC, CBS and Yahoo, however, make no specific mention of player likenesses and instead focus on stats and information.

The 2007 ruling in CBC’s favor against MLB Advanced Media was appealed all the way up to the Supreme Court, which refused to even hear the appeal in 2008, thus upholding the decision. The CBS case decided back in March reached the same result, finding that the fantasy sports producer doesn’t owe licensing fees for the use of stats and player information. Although the appeal remains outstanding in that case, it’s tough to imagine a reversal in light of the CBC precedent.

Now, I have slightly less legal training than Sam Waterston, but the precedential groundwork laid by those two cases would seem to make it hard for an opposite ruling in any similar suit to stand through appeal — if it were even handed down in the first place. If the Supreme Court isn’t even willing to review the decision that player statistics and information reside in the free public forum, what grounds do south Florida judges or any others have to say otherwise?

The exclusive rights to player photos make sense. An individual should be able to benefit from profits related to use of his or her likeness. The facts, however, are free. Maybe a ruling to that effect in the Yahoo! case will end assertions to the contrary.

(Note: Hat tip to loyal FSB.com reader Randal Burgess for calling the Gridiron.com case to our attention.)