TOWER GROVE — Fantasy sports league operators have the free-speech right to use players’ statistics and players’ names without purchasing a license from a league or a union, a federal court ruled Tuesday in St. Louis.

The ruling could have profound impact on fantasy sports and how games are played.

The federal appeals court in St. Louis upheld the finding of a lower court that was in favor of CDM Fantasy Sports. Major League Baseball Advanced Media was the original defendent in the suit, though it was later joined and then steered by the Major League Baseball Players Association. The two organizations fought an original ruling in their attempt to take control of the fantasy market by arguing that statistics were the same as a players likeness and that the use of them was a violation of a player’s right to publicity.

A three-judge panel refuted that argument.

“The information used in (CDM’s) fantasy baseball games is all readily available in the public domain,” read the decision from U.S. Court of Appeals Eighth Circuit, “and it would be strange law that a person would not have a first amendment right to use information that is available to everyone.”

The genesis of this court case came two years ago when CDM sought a license with MLB Advanced Media under the MLB arm’s new rules regarding fantasy league operations. The St. Louis-based CDM, which is now a subsidiary of Liberty Media, was rejected for a license. But it continued operating its fantasy leagues even as it fought MLB Advanced Media’s right to assert ownership of statistics.

Industry experts believed the case could have a chilling effect on the fantasy industry, especially if a court ruled in favor of a league’s right or its players’ rights to own numbers, the basic elements of fantasy games.

“It would have been catastrophic if it would have gone the other way,” said Charlie Weigert, the vice president at CDM. “We couldn’t have operated many of our games, and a lot of other (fantasy league operators) wouldn’t have been able to continue.”

Fantasy sports is a $1.5-billion business with 19.5 million players.

The importance of Wednesday’s decision is apparent by who filed briefs in support of the MLB-related organizations. They included: the NFL, the NFL Players’ Association, NASCAR, the PGA Tour, the NBA and the NHL. All of the major sports rallied in support of MLB Advanced Media and the MLBPA and their attempt to win the right to sell licenses to their statistics.

The financial benefit of doing that is obvious.

Consider some of the arguments presented in those briefs.

From the 47-page brief filed by the NFL Players Association:

“The district courts ruling should be reversed because  (it) … tramples one    the most fundamental rights a person  has — the right to control his or her identity. Online fantasy-sports games, like those at issue here are  built on the identities of professional  athletes;  their identities  are used as virtual board game pieces.”

From a 41-page brief filed,  en masse, by the NBA, WNBA, NHL, NFL, NASCAR  and PGA:

“Where the predominant character of the use is the commercial exploitation of the individuals identity to sell products, ather than the dissemination of thoughts, ideas or information through news reporting or other commentary expression, then the individual’s intellectual property interest in the commercial vlue of his or her identity outweighs the First Amendment right of free expression.”

And:

“Prohibiting (CDM’s) unauthorized use of the players’ names and statistics in it fantasy games will not keep that information out of the marketplace or render fantasy games unavailable to the public. Sportswriters will certainly continue to report on players’ athletic accomplishments, and players will undoubtedly continue to license their identities  for us in fantasy games. The difference will be that (CDM) will not be permitted simply to exploit or capitalize on the players’ property  interest in their identities for its own commercial benefit without compensating the players for such a use.”

The leagues are clearly trying to connect usage of stats and names  to de facto endorsement by the player or the league for that fantasy sports company.  CDM and its attorney argued that no user perceives the appearance of, say, Derek Jeter’s batting average in a game  beside his name as a statement that Derek Jeter supports and  advocates the play of this game over any other others. CDM argued that names and stats are  in the public domain, like  phone numbers and box scores.

(Team logos, league logos, etc. … well that’s far different.)

The leagues tried to  equate stats and names to  team logos and league trademarks. The courts didn’t buy that argument.  In fact, they imploded it — at one point broadening the range of free speech protection to base elements of video games. Tuesday’s judgment said:

“We also find no merit in the argument that (CDM’s) use of players’ names and information in it fantasy baseball games is not speech at all. We have held that ‘the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games’ is speech entitled to First Amendment protection.”

Where does that leave the video-game  creators who spend fortunes on licensing fees to use  a players’ likeness or his historical data … or statistics.

Said Rudy  Telscher, the local attorney who represented CDM: “They are opening Pandora’s Box.”

Back in 2005, when this case first began, Telscher likened statistics to phone numbers — which if printed in a phone book are therefore public domain. The court had previously upheld that nobody owns those numbers. The appellate court’s ruling Wednesday ruled that the same rights afforded a newspaper, like The Post-Dispatch and its printing of box scores and league leaders, also belong to game operators.

The ramifications of such a free-speech connection could be far-reaching.

Just as if the opposite ruling was handed down. I wondered if that would cause a rush to claim ownership of statistics. In Alan Schwarz’s book “Numbers Game”, he chronicles the creation of many of our tenet statistics — batting average, slugging percentage, ERA, etc. If a player or a league owns a player’s statistics, then a logical extension of that legal rule would be that the inventor owns the calculation of that stastic.

Does that mean a player would have to pay the inventor of the statistic before said player could use that statistic in arbitration? Scott Boras would have spend some money in licensing fees before pitching his clients with three-ring binders soggy with statistics.

That appears to be an academic question, for  now.

MLB Advanced Media, the MLBPA and others remaining legal recourse could be to petition for  all of the judges in the eighth circuit to read and rule on the  suit or to attempt to convince the Supreme Court it should rule on the subject.  One of the judges did file a dissent to the opinion that, while not disputing the first amendment’s trump of the right to publicity, did feel  that by entering into previous licenses with the MLBPA that CDM was possibly in  breach of contract.  

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More on this court ruling in tomorrow’s Post-Dispatch and online here at StlToday.com. Feel free to file questions or comments below on the blog because there’s a lot of thoughts on where this ruling could lead.

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