Supreme Court Leaves in Place Eighth Circuit Test Favoring First Amendment Protection for Fantasy Sports
By Dmitriy Tishyevich — Edited by Evie Breithaupt
On June 2, the Supreme Court denied petition for a writ of certiorari from Major League Baseball Advanced Media (“MLB”). MLB had sought to appeal the Eighth Circuit’s decision, which held that the First Amendment interests in public information about baseball and baseball players outweighed the players’ state law right of publicity.
The Eighth Circuit affirmed the district court, which had granted summary judgment to CBC, a producer of fantasy major league baseball games. CBC sought a declaratory judgment that it may use, without license, the names of and information about major league baseball players in connection with its for-profit fantasy baseball products.
The Eighth Circuit found that MLB had provided sufficient evidence to establish a cause of action for violation of players’ rights of publicity under Missouri law. It held, however, that under Supreme Court precedent, a state law right of publicity must be balanced against First Amendment considerations. The court found that the CBC’s First Amendment rights superseded the players’ rights of publicity. The majority noted that information meant only to provide entertainment still enjoys First Amendment protection, and it reasoned that the significant public value of information about “the national pastime” entitles it to substantial protection. It noted also that as the information used by CBC was already available in the public domain, it would be “strange law” if CBC did not have a First Amendment right to use information available to everyone else. The court was not persuaded that CBC had violated the economic interests of the players which the right of publicity seeks to protect, noting that the players were already adequately compensated for their participation in games. It also rejected the argument that the non-economic interests protected by the right of publicity, such as rewarding celebrity labors and avoiding emotional harm, were violated, finding that none of these interests were implicated in the context of fantasy baseball.
Judge Colloton dissented. He agreed with the majority’s analysis of the right to publicity and the application of the First Amendment to fantasy baseball, but disagreed as to its resolution of the contractual dispute between the parties.
The Supreme Court’s denial of certiorari lets stand a decision securing strong First Amendment protection for information available in the public domain, even where such information is used for commercial, for-profit purposes. In its First Amendment analysis, the Eighth Circuit purported to use a balancing test, with free speech interests on one side and the players’ rights to publicity on the other. However, the test does not appear to be neutral, as the majority started with the supposition that restricting access to information available in the public domain would be “strange law,” which suggests that denial of access to publicly available information should be the exception rather than the rule. The logic of the decision can almost certainly be extended to other popular fantasy sport games, as it is unlikely that courts can draw principled distinctions between fantasy baseball and, for example, fantasy football. It is also possible that the majority’s reasoning can be extended to other public domain information, such as works of art whose copyright protection has lapsed, works created by the U.S. government or its agencies, or software and code placed into public domain by its author. It remains to be seen, however, whether other circuit courts will find the Eight Circuit’s expansive holding persuasive, and whether the logic of its opinion will be expanded or curtailed in future litigation.
A recent New York Times editorial welcomed the Supreme Court decision as a win for fans and free speech.
Above the Law comments that this decision will encourage more affordable fantasy sports games by removing licensing requirements that previously inhibited new parties seeking to compete in the fantasy game market.
Although supportive of the Eighth Circuit ruling, Mark Conrad of Sports Law Blog was surprised by the Supreme Court decision to deny cert, which he points out leaves unresolved confusion over the right of publicity standard and the nature of its interaction with the First Amendment.