2009 Scholarly Conference on College Sport
Session 7 – 3:00pm-3:30pm
UNC
Linda A. Sharp
Brendan Dwyer
University of Northern Colorado
Purpose of Presentation

Recent Events:
 Right
of Publicity ruling: C.B.C. Distribution and
Marketing v. Major League Baseball Advanced Media
(2007)
 CBSsports.com extension of their college fantasy
football game to include the exact names and likeness
of intercollegiate athletes (2008)

The purpose of this presentation is to discuss the
application of the CBC case to collegiate fantasy
football and basketball games that use the exact
names, images, and likenesses of current college
athletes.
Fantasy Sports
Sports
Fantasy

Ancillary sport service heavily-associated with
statistical output of individual athletes
 Participants
act as general managers or owners of their
own athletic team
 Primarily an online activity that is completely
customizable, interactive, and involves nearly every
major sport, from the National Football League to
college field hockey.
 Several connection points for participants including:


Gambling
Social interaction


Entertainment/Escape
Competition
Profile of the Industry & Participants


29.9 million adult participants in the United States
and Canada (Fantasy Sports Trade Association
[FSTA], 2008)
Economic impact of over $4 billion annually
$800 million spent directly on fantasy sports products &
services
 Additional $3 billion spent on media related to the hobby


Average fantasy participant is a highly-coveted
consumer
 Caucasian
Male, 18-45, with a Bachelor’s Degree and
an annual household income between $75,000$95,000
College Fantasy Sport


A Google search of College Fantasy Sports
resulted in over 54,000 unique web pages
U-sports.com
 13th
year of fantasy college football and basketball
 Three pricing tiers from $16.95 to $29.99 per team

CFFL.com – College Fantasy Football League
 10th
year
 $25,000 in prizes; $24.95 per team

PreProSports.com
 8th
year
 Pricing structure unknown
College Fantasy Sport (cont.)

CBSsports.com
8
different sports with several services within each sport
 Over 3.2 million unique members with over 565 million
fantasy sport-specific web page views (FSA, 2007)
 College fantasy football since 2003
 Completely
free activity
 No player likeness or number
 Tim Tebow = QB Florida
 In
2008, CBS announced that player names and
likenesses will be used on CBSsports.com
 Michael
Hurcomb of CBS equated the transition to the
inventions of "fire, electricity, telephones, planes, and
cars."
Amateurism & Fantasy Sport

Knight Commission on Intercollegiate Athletics

Executive Director, Amy P. Perko: "I think it's clear that the
CBS program is in violation of [the NCAA[']s] amateurism
rules” (¶6, Moser, 2008).

Co-chairman, Gerald Turner: “College athletes in fantasy
games and video games may seem trivial to some, but
these and other forms of new media pose new challenges
to the long-held distinction between commercial activity
featuring teams and that which focuses on individual
athletes” (Knightcommission.org, 2008)

Member, Len Elmore: “Invasion of commercialism appears
to be inevitable given new technologies that are
intersecting with consumer demand for interactivity and
reality-based gaming” (Knightcommission.org, 2008)
Amateurism & Fantasy Sport (cont.)



Amateurism is a long-standing and deeply-rooted
principle upon which intercollegiate athletics is built
(NCAA Constitution, Article 2.9).
The bylaws of the National Collegiate Athletic
Association (NCAA) prohibit companies from trading
on the names, likenesses, or images of specific athletes
(NCAA Constitution, Article 12.5–12.5.2.2).
The NCAA’s response:
Sent a formal letter to CBS
 Formed a committee to look into the matter
 Asked CBS to remove the image of Graham Harrell (Texas
Tech) from their website promotion
 Believe that the C.B.C. ruling extends to college athlete’s
right to publicity (Moser, 2008)

Inconsistent Response

NCAA spokesman Bob Williams:
 “because
of the added exposure fantasy sports can
bring the student-athlete, the NCAA does not intend to
stand in the way of the fantasy game for now.”
 “the amateurism legislation was written ‘before new
media’ and does not properly address a situation like
this,” (Wall Street Journal, 2008).

NCAA President Miles Brand:
 “There
is no such ready and obvious answer in this
instance. Where we have no standing with regard to
publicity rights - as in this case - to bring legal action,
we must use other means to try and protect the concept
of amateurism,” (Double-A Zone Blog, 9/8/08).
A Lucrative Partnership

CBS & the National Collegiate Athletic Association
(NCAA)
 Key
corporate partner for decades
 Responsible for over 90% of the NCAA annual
operating budget
 Men’s
Basketball Tournament television rights ($6.2 billion
through 2013)
 CBS
plans to launch a College Fantasy Basketball game
within the next year
Can the NCAA afford to jeopardize their
relationship with CBS over college fantasy sports?
The Right to Privacy

Warren & Brandeis’ seminal law review in 1890
 Necessity
to protect the “right to be let alone”
 “Gossip
is no longer the resource of the idle and of
the vicious, but has become a trade, which is pursued
with industry as well as effrontery”
 Need
a more liberal legal remedy beyond the
protection of property interests
 “In
every such case the individual is entitled to decide
whether that which is his shall be given to the public”
The Right to Publicity

Haelan Laboratories v. Topps Chewing Gum, Inc.,
202 F.2d 866 (2d Cir. 1953)
 Rival
companies battled for right to publish baseball
cards with pictures of pro baseball players
 Court
 “In
used term “right of publicity” for the first time
addition to and independent of that right of
privacy…a man has a right to grant the exclusive
privilege of publishing his picture”(p. 868).
The Right to Publicity (cont.)


Currently 30 states recognize the right of
publicity by common law and statute
Restatement (3rd) Unfair Competition § 46
 “one
who appropriates the commercial value of a
person’s identity by using without consent the person’s
name, likeness or other indicia of identity for the
purposes of trade is subject to liability”
C.B.C. Distribution & Marketing Inc. v.
Major League Baseball Advanced Media





Seller of fee-based online fantasy sports products
Had purchased licenses from MLBPA to use player
names and statistics (agreements in 1995 and 2002)
Agreement expired Dec. 31, 2004
MLBPA agreed to sell MLBAM exclusive rights to use
player names and statistics
CBC rejected offer of buying sublicense from MLBAM
and sued for declaratory judgment to use “without
license, the names and information about major
league baseball players in connection with its fantasy
baseball products” (505 F.3d at 820)
CBC v. MLBAM (cont.)

District Court granted summary judgment for
CBC
 No
violation of players’ rights of publicity under
Mo. Law
 First
Amendment right to use names and stats
superseded any potential infringement of right of
publicity
CBC v. MLBAM (cont.)

8th Circuit affirmed in 2007 (505 F. 3d 818)
 However,
players do have a valid right of publicity
action under Mo. Law
 But, “CBC’s first amendment rights in offering its
fantasy baseball products supersede the players’
rights of publicity” (p.824)
 Even
though CBC used stats for commercial purpose, use
was still speech with an entertainment purpose entitled to
First Amendment protection
CBC v. MLBAM (cont.)

The balancing test—1st Amendment v. Right
of Publicity
 “it
would be strange law that a person would not
have a first amendment right to use information that
is available to everyone” (p. 823 citing Cardtoons)
 “substantial public interest” in expressions relating to
baseball stats
 Players had minimal interest in owning rights of
publicity because they were already sufficiently
encouraged to create stats because of high salaries
and endorsement deals
What is the meaning of the CBC decision?

How broadly to extend the “public domain”
argument?
 Should
the use of the stats here be considered
educational or entertainment v. commercial?
 Should
the players’ rights of publicity be diminished
based on how much they are paid and whether their
ability to earn a living is affected?
Should CBC control a right of publicity
case by a college athlete?

Elements of a prima facie case of action
1) the use of the plaintiff’s identity-Yes
2) identity has commercial value--Yes
3) defendant appropriated commercial value for
purposes of trade—Not educational or informative
4) lack of consent—no consent to exploit identity
5) resulting commercial injury—unjust enrichment by
defendant
Lack of Consent Issue



S-A agrees to be bound by NCAA rules which
relate to amateurism
NCAA states bylaws being violated by use of
player likenesses so is S-A free to bring claim
since NCAA agrees that this use violates bylaws?
If use considered not to violate NCAA bylaws
should S-A still have right to argue lack of consent
 athletic
scholarship is unconscionable contract of
adhesion
 an exploitation of right of publicity regardless
What is the meaning of the CBC case?

Regarding the First Amendment right
 CBC
court was not neutral as it began its balancing test
 Began
with proposition that “it would be strange law
that a person would not have a first amendment right to
use information in the public domain”
 Presumptive
 Is
right to use public domain information
court’s language relating to “first amendment” and
“public domain” broad enough to suggest that this
holding should go beyond specifics of case?