Collegiate Fantasy Sports and Amateurism:

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Collegiate Fantasy Sports and Amateurism
Should The C.B.C. Distribution and Marketing v.
Major League Baseball Advanced Media Case Apply
to Intercollegiate Athletics?
2009 Scholarly Conference on College
Sport Session 7 300pm-330pm
Brendan Dwyer

• Linda A. Sharp
• University of Northern Colorado

UNC
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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.

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Fantasy Sports
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

• Gambling
• Social interaction
• Entertainment/Escape
• Competition

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

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College Fantasy Sport

• 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

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College Fantasy Sport (cont.)

• 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."

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Amateurism Fantasy Sport

• 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)

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Amateurism Fantasy Sport (cont.)

• 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
  12.512.5.2.2).
• The NCAAs 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
  athletes right to publicity (Moser, 2008)

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Inconsistent Response

• 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).

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A Lucrative Partnership

• CBS the National Collegiate Athletic
  Association (NCAA)
• Key corporate partner for decades
• Responsible for over 90 of the NCAA annual
  operating budget
• Mens Basketball Tournament television rights
  (6.2 billion through 2013)
• CBS plans to launch a College Fantasy Basketball
  game within the next year

Can the NCAA afford to jeopardize their
relationship with CBS over college fantasy sports?
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The Right to Privacy

• 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

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The Right to Publicity

• 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
  privacya man has a right to grant the exclusive
  privilege of publishing his picture(p. 868).

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The Right to Publicity (cont.)

• 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
  persons identity by using without consent the
  persons name, likeness or other indicia of
  identity for the purposes of trade is subject to
  liability

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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)

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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

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CBC v. MLBAM (cont.)

• 8th Circuit affirmed in 2007 (505 F. 3d 818)
• However, players do have a valid right of
  publicity action under Mo. Law
• But, CBCs 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

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CBC v. MLBAM (cont.)

• The balancing test1st 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

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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?

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Should CBC control a right of publicity case by a
college athlete?

• Elements of a prima facie case of action
• the use of the plaintiffs identity-Yes
• identity has commercial value--Yes
• defendant appropriated commercial value for
  purposes of tradeNot educational or informative
• lack of consentno consent to exploit identity
• resulting commercial injuryunjust enrichment by
  defendant

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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

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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 courts language relating to first amendment
  and public domain broad enough to suggest that
  this holding should go beyond specifics of case?