• Ronald A. Flate

Baseball Strikes Out On Stats

Millions of sports fans participate in fantasy sports games in which the participants “draft” the names of real professional athletes and compete against other teams based on the actual statistical performances of the athletes during their seasons. In the case of baseball, until several years ago a fantasy sports company licensed the use of the names and information about big league players from the Players Association for Major League Baseball (MLB). When that deal expired, the Association instead gave an exclusive license to an online arm of the MLB, which operated its own fantasy baseball business.

The excluded company sued the MLB, seeking a ruling that it could use the names and statistics of the players, even without a license. Essentially, the question was whether the players themselves, or the public at large, own that information. A federal court sided with the excluded company. Simply put, the information at issue was already placed in the public domain, and there is a First Amendment right, available to everyone, to make use of it.

The court rejected an argument by the MLB that the names and information about the players are not “speech” at all. On that issue, the names and statistics in a fantasy game are not appreciably different from the constitutionally protected pictures, graphics, concept art, sounds, and other components of video games.

Fantasy baseball may not represent the purest form of protected speech–it is mainly about entertainment more than informing the public–but the information comes within the protection of the First Amendment. There is some informational value to the information in the fantasy games, since, as the court put it, “[t]he records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances.”

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