Fort Lauderdale-based CBSSports.com scored a victory this week when a federal judge in Minneapolis ruled CBS Interactive does not have to pay to use NFL players’ names and statistics in its fantasy football games.
U.S. District Judge Ann Montgomery said in her April 28 ruling the names and stats are protected by the First Amendment. Her ruling follows an earlier federal appeals court decision that said baseball players’ names and stats are in the public domain. Last year, the U.S. Supreme Court refused to hear that case. Montgomery said the ruling applies to football as well.
“The court declines to indulge in a philosophical debate about whether the public is more fascinated with baseball or football,” Montgomery wrote in her ruling.
“CBS is pleased that the court confirmed the use of player names, statistics and other materials in CBS’ online fantasy games is protected under the First Amendment,” CBSSports.com’s General Manager Jason Kint said in a statement. “CBSSports.com, along with the rest of the fantasy sports industry, looks forward to continuing to provide the fun and excitement of fantasy sports.”
The baseball case began in 2005, when a fantasy baseball game provider sued Major League Baseball seeking the right to use player statistics without a license. The district ruled the First Amendment applied to the information. The Eighth Circuit Court of Appeals agreed.
CBSSports.com took the ruling in the baseball case to apply across sports, and even added college players’ names to its college fantasy football game. When its agreement to pay for the use of NFL players stats expired in February 2008, the company declined to renew.
The players’ union threatened to sue, but CBS struck first, filing suit against the NFL Players Association Sept. 3 in Minnesota, where the baseball case had been decided. Players Inc., the marketing arm of the players union, counter-sued Sept. 9 in Florida, where CBSSports.com is based. The Florida case was stayed until a decision could be made in Minnesota.
“We are evaluating the decision now and we haven’t determined what our next steps are going to be,” Jeffrey Kessler, an attorney representing the players, said Thursday.
The union clearly thought a different district court might rule differently and chose Florida because of where CBSSports.com is based.
Where the sports leagues and their players unions have supported the notion the players’ identities require licensing, the fantasy sports providers have lined up squarely against the need to pay licensing fees. Those providers have to be rejoicing: the fantasy sports industry counts some 27 million players in the United States, who spend an estimated $800 million annually on magazines, draft boards and Web site game subscriptions.
“This victory further cements the autonomy of fantasy sports operators from sports leagues and player unions,” newly-elected Fantasy Sports Trade Association President Paul Charchian said in a statement. “The ruling ensures that the industry’s hundreds of fantasy companies will continue creating wide ranging products to serve the needs of fantasy players."
According to an FSTA release, Charchian and Glenn Colton, a New York lawyer who filed friend of the court briefs on behalf of the FSTA in the baseball case, both said they hoped the fantasy sports industry and leagues and players' associations could work together.