Amid New Focus On Sports Betting, Unions Previously Took Stance On ‘Publicity Rights’ In Fantasy Lawsuit

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NFL Jermaine Kearse #15 of the Seattle Seahawks

Last week, the four most prominent US player unions flagged athlete “publicity rights” as a point of emphasis in a joint statement about sports betting.

And two of the four unions — the National Football League Players Association (NFLPA) and the Major League Baseball Players Association (MLBPA) — have already staked a position on the issue in previous litigation.

“The right of publicity protects athletes’ right to control the commercial use of their names,” wrote lawyers for the NFLPA in a 2006 court filing.

The baseball union reached a similar conclusion in the same case a decade ago.

The NFLPA and MLBPA courtroom briefs were made in fantasy sports lawsuit that ended in 2008 and were recently obtained by Legal Sports Report.

Taken together, the prior legal filings shed light on the likely position the four unions — NFLPA, MLBPA, National Basketball Players Association (NBPA) and National Hockey League Players Association (NHLPA) — will take following last week’s unified statement demanding a “seat at the table” in deliberations over potential sports betting legalization.

What was the fantasy sports lawsuit about?

The fantasy case started when CBC sued Major League Baseball Advanced Media (MLBAM) seeking a declaratory judgment allowing CBC to use player names and statistics in its fantasy contest offerings without a license.  

CBC grounded its courtroom strategy, in part, on First Amendment free speech concerns.

At the time of the lawsuit, MLBAM was owned and controlled by Major League Baseball and team owners. MLBPA — the baseball union — later intervened in the case on the same side as MLBAM.

“[W]e hold that CBC’s First Amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity,” concluded Judge Morris S. Arnold of the US Court of Appeals for the Eighth Circuit on October 16, 2007.  “[T]he information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a First Amendment right to use information that is available to everyone.”

MLBAM and MLBPA appealed the loss to the US Supreme Court, but were turned down in 2008, ending the case.

Baseball union takes a stance

The baseball union filed several briefs in the case that directly addressed ‘publicity rights’ of the type mentioned in the joint statement released last week.  

“It is well established that famous persons, including Major League baseball players, have a property right in their identities and that others may not use or exploit these identities commercially without the person’s consent,” wrote MLBPA lawyers in a Feb. 22, 2008, court filing to the Supreme Court.

The baseball union also argued how publicity rights should apply in the fantasy context.

“Without the players’ identities, there would be no fantasy,” wrote MLBPA’s lawyers in a different brief three months later. “CBC’s games would be no more interesting or commercially viable than games in which participants pay to predict the weather at major cities around the globe.”

Football players association makes position known too

The NFLPA was not a litigant in the CBC v. MLBAM case. However, the union took the opportunity to file an amicus brief when the case was at the Eighth Circuit and again when being considered by the Supreme Court. In both instances, the NFLPA set forth how the union viewed ‘publicity rights’ in the sports gaming context.

“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,” wrote NFLPA lawyers in a 2006 brief filed with the Eighth Circuit. “CBC gains a commercial advantage from its unauthorized use of athletes’ names and playing records.”

The NFLPA brief also argued that a decision in favor of CBC “threatens athletes’ rights to receive compensation for the value of their identities in commercial products.”  

The football union concluded its 2006 brief with an explanation about why the First Amendment does not protect CBC.

What is next for the four unions?

Last week’s statement did not include any specific timetable on when the four labor unions would commence lobbying at the state and/or federal level.  

“Our unions have been discussing the potential impact of legalized gambling on players’ privacy and publicity rights, the integrity of our games and the volatility on our businesses,” wrote the unions in their April 12 statement.

When it comes to ‘publicity rights,” however, two of the four unions involved in the joint announcement on sports betting have already made on-the-record statements about how such claims overlap with fantasy sports.  

They could return to the same arguments now and apply them to sports wagering, especially certain types of athlete-specific prop bets.

All they need to do is dust off the legal briefs they filed a decade ago in the CBC v. MLBAM case.

Indeed, recycled legal arguments sometimes have a long tail, especially when the same issues will crop up again following the Supreme Court’s pending ruling in the long-running New Jersey sports gambling case.