Baseball makes pitch to Supreme Court

One of the jilted providers, C.B.C. Distribution and Marketing in St. Louis, went to court and last year won a double-header victory in the U.S. Court of Appeals there. The judges ruled that the fantasy game provider had a 1st Amendment right to use the names and statistics of major league players, and it was free to ignore the earlier licensing deal.

If that ruling stands, it could disrupt "billions of dollars" of licensing deals in pro-sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. "Celebrities and athletes have enforceable publicity rights," they argued, and the 1st Amendment has never been understood to give other companies a right "to exploit players' identities for commercial gain."

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores were available to the public. "The mere dissemination of facts or statistics is protected. And all our clients are doing is disseminating the same information that newspapers put in the sports pages every day," said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major Baseball League. The dispute involves famous names, not mere statistics, the league argues. Though the names of players such as Albert Pujols or Derek Jeter may be published or broadcast every day, "those names may not be incorporated without the famous persons' consent primarily for commercial purposes into a product -- be it a coffee mug, a poster, a board game or an Internet game -- without consent," the league said.

Neither side can point to a Supreme Court precedent that resolves the matter. The justices last ruled in a right-to-publicity dispute more than 30 years ago in the case of the Human Cannonball.

Hugo Zacchini made his living being fired from a cannon and landing in a net 200 feet away. He sued a TV station in Ohio that had taped his entire 15-second performance at a county fair and ran it on the evening news. In Zacchini vs. Scripps-Howard Broadcasting, the Supreme Court ruled in favor of Zacchini in 1977 and said the 1st Amendment did not give others a right to make use of a performer's entire act.

But the 5-4 opinion did not say how judges were to decide future disputes between the publicity rights of performers and the public's right to use public information. For that reason, some lawyers say there is a good chance the court will agree to hear the dispute between Major League Baseball and the fantasy leagues.