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In this series, we will explore some of the important case law that is relevant to sports leagues’ argument that they should be compensated for “official data,” “intellectual property,” or whatever other term-du-jour league executives choose to use.
The quest for official league data rights and fees has evolved since it first emerged in Indiana in January 2018. The early wave of requests for 1% integrity fees has died down, with the leagues now seeking 0.25% and/or official data mandates.
The question many are asking is, why should the leagues get paid? What is the foundation of their argument? The short answer: their argument’s foundation is built on sand in a typhoon zone.
What follows is an overview of one of the cases that is the basis for the long answer:
The Gionfriddo case originated in California state court and was decided in 2002 by the First District California Court of Appeal. It is not a federal case, but even so, might be instructive as to the scope of some of the rights leagues seek to protect.
The Gionfriddo case centered on claims made by four former Major League Baseball players who played between 1932 and 1948.
Major League Baseball Properties, a Major League Baseball licensing arm that controls the “merchandising and licensing for all 30 MLB teams in both the American and National Leagues and affiliated entities and Spring Training, Opening Day, All Star Game events, Division Series, League Championship Series, World Series and special programs,” licensed the use of players names and statistics in various Major League Baseball associated publications.
The players in the lawsuit were an exception such that they appeared often in MLB publications that noted such things as All-Star team selections and former MVP awards. Gionfriddo and the other players, however, contended that baseball was violating their rights of publicity under California law by reprinting their historical statistics.
The players in the group were limited to those prior to 1947 because that is when Major League Baseball began incorporating language in standard contracts which read:
“The Player agrees that his picture may be taken for still photographs, motion pictures or television at such times as the Club may designate and agrees that all rights in such pictures shall belong to the Club and may be used by the Club for publicity purposes in any manner it desires.”
Gionfriddo and the other plaintiffs lost their case, as the trial court found: “that the challenged uses of plaintiffs’ names, images and likenesses:
(1) were all in connection with news, public affairs, or sports account'” within the meaning of Civil Code section 3344, subdivision (d), and as such did not constitute a “use” for which consent was required under subdivision (a) of that section; (2) constituted publication of matters in the public interest, and as such were protected from civil liability by the First Amendment of the United States Constitution; and (3) were legally permissible under the doctrine of master-servant.”
The Court of Appeals in California said that the plaintiffs need to show that baseball had satisfied the four elements of a right of publicity claim:
“(1) the defendant’s use of the plaintiffs identity
(2) the appropriation of plaintiffs name or likeness to defendant’s advantage, commercially or otherwise
(3) lack of consent;
(4) resulting injury.
In addition to satisfying these four elements though, “the common law right does not provide relief for every publication of a person’s name or likeness. The First Amendment requires that the right to be protected from unauthorized publicity “be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press.”
The California Court of Appeals noted that the information conveyed by Major League Baseball:
“consists of factual data concerning the players, their performance statistics, and verbal descriptions and video depictions of their play.
“This information may fairly be characterized as mere bits of baseball’s history: names of players included on All-Star and World Series rosters; descriptions of memorable performances from former games included within All-Star and World Series game programs created for the benefit of the media and the enjoyment of the fans; photographs and video clips taken of plaintiffs when they were playing the game themselves, and made available to the public through Web sites, home videos, and other programs presenting historic events from long ago. In short, they are fragments from baseball’s mosaic.”
The appeals court went on to state:
“Major league baseball is followed by millions of people across this country on a daily basis. Likewise, baseball fans have an abiding interest in the history of the game. The public has an enduring fascination in the records set by former players and in memorable moments from previous games.
“Statistics are kept on every imaginable aspect of the game. Those statistics and the records set throughout baseball’s history are the standards by which the public measures the performance of today’s players.
“The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances. Thus, the history of professional baseball is integral to the full understanding and enjoyment of the current game and its players.”
The court focused on MLB making historical facts available to the public, noting the “substantial public interest” in the dissemination of this information. The judges noted that such information is “due substantial constitutional protection.
The California court further noted that the inclusion of these statistics did not rise to the level of commercial speech (thereby receiving less constitutional protection) because they were ancillary aspects to the materials that Major League Baseball was selling.
There might be some great irony in the fact that Major League Baseball prevailed in arguing that statistics and even some recordings were protected by the First Amendment and thereby fell outside of the California right of publicity, especially as the leagues continue to argue for compensation or mandated official league data feeds.
While the Gionfriddo case is not a federal case, the findings that statistics are protected by the First Amendment could be instructive in a future lawsuit over compulsory compensation to sports leagues. The case of sportsbooks using data is obviously a different animal than a program, where the statistics are secondary, but nonetheless, the Gionfriddo case is an additional judicial obstacle that the sports leagues must navigate.
The sports leagues continue to face an uphill battle in their quest for sports betting compensation, whether that is through an “integrity fee,” a “royalty,” or the mandated use of official league data. The leagues simply find themselves with a mountain of precedent against them. Even state-level legislative approaches to acquiring compensation may be trumped if the leagues are unable to overcome the First Amendment, which looms large in this area.