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Tuesday, May 16, 2006

BASEBALL IS A GAME OF NUMBERS, BUT WHOSE NUMBERS ARE THEY? NY TIMES, MAY 16, 2006---Alan Schwarz

"This relationship between players and numbers, so often romanticized, is now being stripped to its skeleton in a lawsuit with considerably wider ramifications. While the dispute focuses on fantasy baseball — in which millions of fans compete against one another by assembling rosters of real-life major leaguers with the best statistics — a real legal question has arisen: Who owns that connection of name and number when it is used for such a commercial purpose?"

  • According to this article, MLB is only being paid $6 million a year for certain fantasy stats. The rest of the fantasy field is bringing in over $1 billion. Enter Sandman? No.
  • ENTER MLB ADVANCED MEDIA. Why in hell can't they leave ONE THING ALONE IN THIS WORLD. WAKE UP PEOPLE.
Did you know you were invading Derek Jeter's apartment, penthouse, whatever he has, when you were checking his stats that were recorded in an open public stadium outdoors for anyone to see? THAT'S WHAT THESE MLB MONSTERS ARE SAYING WE DO WHEN WE LOOK AT STATS. WHY ?
  • THEY WANT EVEN MORE OF MY MONEY & YOURS, AND THEY WANT TO STRICTLY LIMIT INFORMATION. INFORMATION IS WHAT THEY WANT IT TO BE.
"What a company like CBC is selling is not nearly a repackaging of statistics," said Lee Goldsmith, a lawyer for Major League Baseball Advanced Media. "They're selling and they're marketing the ability to buy, sell, draft and cut Derek Jeter, Alex Rodriguez, Albert Pujols. And part and parcel of the reason that people are willing to pay for that ability is the persona of Jeter, of Rodriguez, of Pujols."
  • Beaten down already, tired, confused, the average person will become a slave to this totalitarian way of life.

"Dozens of small, unlicensed fantasy-league operators, as well as their customers, are watching the case intently because a Major League Baseball Advanced Media victory could put those operations out of business, said Jeff Thomas, president of the Fantasy Sports Trade Association.

Mr. Telscher said: "It's not hard to figure out what's going on here. This is moving toward a monopolistic market where M.L.B. controls everything that happens, when it was these smaller companies that built the fantasy industry into what it is today. This is not good for consumers. The reason that beer costs $10 at the ballpark is because there's no competition, and that's what M.L.B. is doing here."

Major League Baseball Advanced Media is not making a copyright claim to the statistics themselves; a 1997 decision in the United States Court of Appeals involving the National Basketball Association ruled sports statistics to be public-domain facts that do not belong to the leagues.

Rather, the central issue concerns celebrities' ability to control use of their names in commercial ventures, and how this "right of publicity," which has developed under state common law and statute over the last half-century, may commingle with Constitutional press protections under the First Amendment.

The term "right of publicity" was coined in 1953 when, in a case involving baseball, a court ruled that Topps Chewing Gum company could not print trading cards that featured baseball players' names and likenesses without their permission.

In 1970, in a case starkly similar to the CBC case, a Minnesota state court found that two baseball board games, each of which used only names and statistics, misappropriated the players' marketable identities and was subject to license.

But other subsequent cases have favored First Amendment concerns over the celebrities' right of publicity. Several courts have maintained that the dissemination of information, even for profit or for entertainment, cannot be curtailed by any state's right-of-publicity laws. In its court filings, CBC argued that it relied on baseball players' names and statistics "as their lifeblood in much the same way that the sports sections of newspapers do."

Major League Baseball Advanced Media, however, says that selling a service that helps customers pick and trade players crosses the line between reporting on games and running a nonjournalistic, commercial enterprise.

"What constitutes a commercial use — beyond advertising — becomes quite broad and hard to define," said Diane Zimmerman, the Samuel Tilden Professor of Law at New York University.

Several other experts added that courts were still reconciling the right of publicity with the First Amendment's press and free-speech guarantees, leaving the outcome of the CBC case significant beyond baseball stadiums.

"If anything, this case is even more impactful if the court rules for the players, because it will speak to any time you use a name in a commercial venture," said Eugene Volokh, a professor of law at U.C.L.A. "What if you use a historical figure's name in a historical novel? Or other games, like Trivial Pursuit? How about 'Jeopardy!'? Would they be liable as well? That seems to be the logical consequence of this. How do you identify what is news, and other times when there's communication of factual information?"

One interesting wrinkle is that Major League Baseball appeared to take the argument's other side in 1996. When several major leaguers from the 1940's and 50's sued Major League Baseball over use of their names and statistics in materials like promotional videos and game programs, baseball argued that such use was protected by the First Amendment.

While deciding in baseball's favor, a California Court of Appeal said that freedom of the press allowed for "mere recitations of the players' accomplishments," and that the public was "entitled to be informed and entertained about our history." The court agreed with Major League Baseball's argument that players' appearing in such materials did not imply a commercial product endorsement, and therefore did not violate their collective right of publicity.

Fame, Mr. Smolla said, "belongs in part to the people who earn it and the public that gives it." This September, the court will decide the part in which baseball statistics belong.""

  • This is between you, the player, his agent, & his team. MLB should have nothing to do with it. Where is a player with the nerve to take this on?
  • THEY'RE ALL AFRAID OF ALLAN "BUD" SELIG. NO ONE WILL SAY A WORD.

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