Fantasy sports league participants operate imaginary teams comprised of professional players. The teams compete against each other based on players’ real performances in numerous statistical categories. Participants pay fees to companies like C.B.C. to track the performance of real players in their imaginary leagues and to organize the leagues.
The Eighth Circuit did find that all the elements of a right of publicity claim under Missouri law had been met. These elements include 1) that the defendant used plaintiff’s name as a symbol of his identity, 2) without consent and 3) with the intent to obtain commercial advantage. The court, however, held that C.B.C.’s First Amendment right to free speech supersedes the players’ right to control their likeness.The primary reason that the court gave for its decision was that the information used in C.B.C.’s fantasy baseball games was readily available in the public domain, stating that “it would be a strange law that a person would not have a First Amendment right to use information that is available to everyone.” The court also cited previous decisions in which courts have recognized the public value of the game of baseball and its players. Finally, the court reasoned that the facts in this case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals. For these reasons, the court concluded that C.B.C.’s First Amendment right to free speech trumped the players’ right to control their publicity and C.B.C. did not need a license to use Major Leagues Baseball players’ names and statistics.