propecia buy online us doxycycline online overnight shipping uroxatral discount coupon cpt code for neurontin abilify online in us keflex order on line order nolvadex lowest price risperdal how to buy sarafem online purchase discount code for brand viagra pharmacy technician study guide free online micronase generic wikipedia drugs reviews on finax is diovan generic yet does duloxetine cause weight gain buy keppra perth australia retail cost of entocort generic substitute for seroquel altace in the uk now buy viagra soft with paypal rosy code oc80reputable cheap canadian pharmacy no prescription zenegra without prescription miami eldepryl overnight zaditor over the counter what are the side effects of motrin orlistat indian brands viagra soft canada discounts prescription people;s pharmacy zoloft is aleve better than advil for back pain nolvadex tablets uk buy online cafergot generic safe buy meclizine online avapro combination fluoxetine capsules uses inderal from india deltasone medication buy brand ayurslim tadapox drugs online purchases lipothin visa baclofen without memantine cost of orlistat without insurance cost of ranitidine without insurance where to haridra haldol reviews for men cialis daily use online pharmacy pill cheapest lawsuit effexor canada fast worldwide shipping comprar vasotec pela internet vermox tablets for kids mentax tablets price clomid 100mg success stories 2012 trial erection packs 3 pharmacy lamictal without insurance risperdal without prescription miami one man one jar mobile aldactone prescription only lady era comprare healthy three cheese manicotti recipe generic for protonix 40 mg amoxil prescription brand acai for sale apcalis sx buy on line how to purchase midamor online relafen 500 buy vasodilan next day order nolvadex rx lasix iv half life trental tablets very cheap kamagra chewable comprar lipitor barato moduretic dosage and administration what is the dosage for unisom canadian alliance physiotherapy exam pce ranbaxy caverta side effects diovan pill canadian price cialis usa brand cialis over the couter rabeprazole sodium used for swiss legend trimix cialis soft reviews for men pharmacy rx by crystal zamudio for ptcb exam guide cheap methotrexate 100 mg non prescription fosamax pharmacy blue pill for menstrual pain over the counter discount buy avalide phenergan over the counter ireland celexa 100mg buy arava tabletas 20 mg albendazole 100mg pharmacy has best price antivert overnight cialis in us buy alligator louisiana meat delivered adios slimming tablets ireland rogaine uk for women buy diovan from mexico online can you buy celadrin prescription membership where to buy levitra in la where to buy code red 7 pill generic drug name nexium what is lopressor pills used for purchase crestor pills do people get arrested for buying drugs online cialis how to get a prescription cephalexin online purchase how to order noroxin planting amaryllis outside in florida finasteride hair loss side effects cheap celebrex uk buy alli 100mg online buy proscar online canada no prescription order vasotec amaryl m 1 mg side effects ventolin hfa coupons 2012 fml forte reviews for men tenormin 25 mg tablets citalopram without prescription miami sominex prices usa zoloft side effects in men weight gain prednisone 20mg tablets canadian family tree free eldepryl sale how to use dry brahmi leaves cheap provera 2.5 mg zithromax online in usa where can i get some anacin viagra drugs online max safe dose levitra phone in order for triamterene buy sarafem online usa pilex fda approved to buy without prescription buy generic cialis in australia visa de actos de comercio heartburn medicine prilosec calcium carbonate drug class how much does methotrexate cost in canada national insurance number voltaren for purchase free coupon for bupropion is minocin legal in uk vasotec western australia over counter zestril get abilify cheaper generic mycelex-g for sale on line fertomid discount voucher buy alligator meat nj pharmacy lamisil cream sale without script overnight buy allopurinol clomid side effects in men cost of lipitor in spain what is pulmicort inhaler for how much does celebrex cost per pill prescription drugs mexico city actos complications tadacip by the indian pharmaceutical company cipla himalaya ayurslim price cialis super active order pure acai berry reviews uk buy brahmi usa abilify 20 mg side effects evista mexico pharmacy purchasing uroxatral online uk astelin available over counter diclofenac generic reviews asacol australia pharmacy kamagra soft over counter what does erythromycin do to the body order pills.com review can we trust trileptal online buy doxycycline online from uk generic pills for glyset is albuterol sold over the counter glycomet buy canada medication online no prescription canada generic finasteride 5mg canada order cozaar canada order furosemide generic online pharmacy generic isoniazid usa pharmacy how long does it take for metformin to cause weight loss elocon price emsam from europe can you order zyrtec online drugs nitrofurantoin cheap norapred tabletas 5 mg how to take orlistat 120 can i get aldactone what does geriforte syrup viagra triangle shopping how to get baby to take prilosec what does grapefruit juice do to buspar agame 1 on 1 soccer long term effects of anti anxiety medication haldol side effects wikipedia buy prevacid singapore generic medicine for crestor zanaflex 40 mg buying aleve for dogs allegra medication wiki cheap plavix buy precio eutirox 100 med cabinet spray ditropan xl dosage order benfotiamine online medrol prescription information clonidine to purchase without a prescription buy fertomid in australia reminyl express canada air max 1 leopard grey comprar cialis farmacia andorra amantadina dosis pediatrica is it illegal to order generic biaxin order rumalaya forte online with visa hyaluronic acid shelf life cough syrup with codeine and promethazine in canada paxil medication used for permethrin cream 5 crabs buy haridra inhaler canada proventil dosage for copd motrin in croatia sinemet cost in canada where do i buy orlistat decadron injection pediatric dose is 100 mg of prednisone safe is diovan available in india forum zaditor online buy drops buy paxil mg online cheap precose free delivery dramamine generic drug canadian pharmacy- aldactone retin-a 0,05 from canada best place buy nitrofurantoin pct tricor over the counter green line pharmacy reviews fluoxetine 20 mg generic for bactrim side effects how often can i take 20mg of cialis cheap trimox india is it safe to split diovan pills pharmacy support services hayward ca albendazole weight gain amlodipine side effects forum duphalac online legally cheap zyban 100 mg augmentin bid 1000 mg fiyat? cheap genuine procardia online types of painkiller pills acheter alli en ligne pas cher what is the usual dosage of bactrim for a uti lipothin on the internet tamoxifen pct anavar cytotec in the uk pharmacie en ligne france cialis is viagra available over the counter in us buy generic indocin with bonus buy periactin online no prescription usa desyrel for purchase without a prescription ordering generic kamagra viagra buy tricor astrailia sinemet for sale what are the side effects of metformin and alcohol lanoxin cost without insurance what do elavil pills look like buy floxin visa side effects of abilify 15 mg can aricept tablets be split plavix for discount low cost overnight sarafem where cialis super active purchase renagel pills do i need receipt for viagra buying fluconazole online keflex online meds taking clomid cycle days 1-5 bactroban australia price there generic form prometrium wellbutrin sr generic wikipedia drugs provera 10mg twice a day for 5 days what is citalopram 10mg for prednisone 20 mg tablets side effects of xenical diet pills lamictal pharmacy assistance effexor xr side effects uk viagor sex enhancer from canada acheter viagra sans ordonnance pharmacie paris prograf birth control online us donde comprar terramycin alli fda approved to buy without prescription non prescription grifulvin v buy fertomid in ireland zyvox pharmacy prices list cheap aciclovir 100 mg periostat dental lariam online in us how to buy calcium carbonate side effects of 100mg zoloft fexofenadine dosage for dogs canadian doxazosin tablet buy ortho tri-cyclen pills combivent birth control online us cardizem without a prescription ciprofloxacin uses strep buy evecare online overnight alavert shoppers drug mart crestor cholesterol medication astelin for dogs buy betnovate n usa is it safe to order generic drugs online sale geriforte syrup homeopathic medicine for back and neck pain perceuse lithium pas cher search quotes relationship moduretic over the counter canada ciprofloxacin 500mg price online pharmacy ciplox pariet buy online uk low price carbozyne uk tegretol cost amlodipine dosage cats order fucidin on line usa purchase abilify on line in the uk buy danazol online pharmacy prescription viagra belgique viagra clinical studies inderal tablets for purchase footy stats 365 unprescribed clomid for sale motrin 800 mg dosage instructions evista barato asthma inhalers purple generic from cialis purchase viagra professional pills midamor now co uk do you need rx rogaine 5 detrol la coupon free prilosec mexico brand prescription buying canadian drugs in us buspar medication for anxiety buy prograf capsules buy cafergot no prescription online discount information on seroquel medication diclofenac sodium 50 mg for headaches canadian alliance terminals ltd cafergot cheap uk cheap pharmacy schools in uk orlistat generic online where evecare side effects of fertility drugs on babies canadian neighbor pharmacy scams prescription online buy generic celebrex can you order mentax maxalt fast canada buy live online abilify drug action mestinon drug price can your buy cialis professional in ireland online drug order benzac online uk shortage of toradol vicodin vs percocet side effects what does keppra diflucan dosage for yeast infection male viagra plus canada overnight delivery cheap pills buy gasex generic buy flomax from mexico online buy glucophage with allegra by mail order buy cheapest alli pills dipyridamole from usa what is olanzapine odt buy viagra online reviews lowest is ventolin cheaper than proair artane refill pack buy zyprexa new zealand online can i get capoten uses for bactrim ds tablets azithromycin diarrhea travellers buy yasmin in australia where to triamterene drugs order levlen propecia mas barato buy hair growth pills buy brand cialis soft proscar without propecia shop ciplox to buy from europe buy alli overseas brand amoxil without prescription yasmin spain my purinethol coupons tadapox to buy in australia buy differin gel 0.1 best price for real reglan buy cheap amoxil pills doxazosin online overnight to buy tinidazole amsterdam pharmacy new york baclofen paypal generic acticin usa pharmacy does plavix patent expire where can i buy alli online uk betoptic no prescription canada order viagra on the internet periactin sciroppo order cefixime no prescription tamoxifen fertility differin over the counter india much does cialis cost private prescription cleocin order in the us purchase retino a cream 0 025 cheap zithromax no prescription needed canadian online pharmacy voltaren 75 mg get you high buyers of caverta canada cheapest paxil ordering low dose glycomet beconase aq 100mg cheep deltasone rxlist very cheap etodolac trental for sale australia prevacid without prescription the mail order pharmacy at express scripts online viagra sample prevacid otc side effects purchase vpxl on line in australia buy nexium online uk bactroban pills sweat acyclovir online overnight discount female viagra aspirin dosage recommended promethazine purchase in canada no prescription generic augmentin in usa official canadian pharmacy discount code amantadine side effects parkinson;s side effects of compazine treatment reviews of online pharmacies viagra best overnight online pharmacy singulair prescriptions buy dostinex online no prescription united states vermox tablets from buy alli tablets for purchase benemid pas cher cipla inhalers asthma prescription clomid side effects finax side effects long term use purchase topamax on line in india ceftin cheap uk buy probalan boots how to buy amantadine in canada buy alligator gar meat pills flan cafe rico rico procardia india diflucan 150 mg for sale canadian betnovate tablet how to use xenical minoxidil rogaine boots is it illegal to order generic myambutol buy allopurinol mg accutane lawsuit 2012 buy alligator skin buy antibiotics online europe canada drugs zithromax with prescription van i buy viagra over the counter canada speman india buy altace new zealand online over counter voveran sr zyrtec tablets 10 mg dosage where to buy caffeine pills in canada para que se usa dostinex buy viagra next day delivery canada pharmacies online that sell allopurinol cialis ed dosage tenormin to buy in australia zyprexa generic launch purchase nitrofurantoin 100mg canada drugs silagra with prescription buy nolvadex for research purposes how to buy tegretol combivent online forum glyset perth australia voltaren and birth control pills generic name for yasmin birth control now foods panax ginseng 250 capsules / 520mg ampicillin dosage for children online citalopram in croatia ponstel next day free coupon for diclofenac zyprexa 40 mg dose actoplus where can i buy ultra low dose atarax citalopram 20mg and alcohol medrol online no prescription drugs ampicillin 500mg in pregnancy where can i buy alesse birth control retin-a 0,025 online cheap bactrim roche mexico cipro pills pictures what types of gasex are there birth control pills india viagra without perscription benzac online forum generic clozaril canada buy nizoral 40 online januvia purchase what does estrace cream treat best drugstore makeup brands for oily skin synthroid refills buy accutane no prescription isotretinoin normal abilify dosage order motilium tablets cvs pharmacy 96th street and amsterdam uk pharmacies online that sell fucidin xenical versus meridia overnight pharmacy prilosec prescription for viagra canada very cheap grifulvin online united states pharmacy no prescription paxil pharmacy order flomax effectiveness reviews amoxicillin 500mg for sale olanzapine next day shipping buying cymbalta in manchester kamagra oral jelly dosage recommended methotrexate injections nausea buy effexor xr online without prescription canine prednisone side effects panting casodex italiano buy clomid serophene tegretol retard overdose glucophage generic for order protonix online in usa purchasing rumalaya gel online uk pariet generic usa
Home All Articles Who Owns Sports?

Like Shoot to Thrill - An AC/DC Tribute on Facebook!

An authentic tribute of AC/DC that covers the best of the Bon Scott era and the best of Brian Johnson's material

Who's Online?

We have 482 guests online

Atom RSS

Who Owns Sports? PDF Print E-mail
User Rating: / 14
PoorBest 
Articles & Opinion
Written by John Thorn   
Thursday, 31 August 2006 11:12
John Thorn is a contributing writer for The Biz of Baseball 

From "Play's the Thing," Woodstock Times, August 31, 2006:

Money talks, bullshit walks. That coarse and yet so fine phrase, born of poker, soon became the byword of the business arena, particularly when delivered by the man with the money to the schnook with the big idea. But what happens when money comes as part and parcel with bullshit, as is so often the case?

A couple of weeks ago Major League Baseball Advanced Media (MLBAM) and the Players Association (MLBPA) lost a court case to CDM Fantasy Sports, a Missouri corporation legally named CBC that markets, distributes and sells fantasy sports products, including fantasy baseball games accessible over the Internet. Ho hum, you might say; just another argument about money in which John Q. Public has no rooting interest.

Not so. This truly fascinating case, in which Mary Ann L. Medler, United States Magistrate Judge, ruled on August 8, was about more than “Who owns facts?” — specifically here, whether a fantasy baseball game could depict the names and statistics of active players without paying for the privilege. In background a Greek chorus might have intoned not only “Who owns sports?” but also “Who owns fame?”
Without doubt a transaction takes place between and among owner, club, and fan.

The club offers its credible intent to play hard and, often if not reliably, win.

The owner provides (with the aid of the general public, silent partner in all of sport) an arena for entertainment on site and via broadcast that augments spectators’ experience of the contest. He, in concert with other owners, also provides a league structure in which a championship may be contested and determined. Owner and players, in short, combine to make the game.

What does the fan contribute, besides his cash for a ticket, concessions, and parking when he goes to the game, or his inert fanny and eyeballs when advertisers bombard him at home? The fan may be said to own nothing yet give everything, for not only fortune but also fame are at one end of that two-way street in which the fan’s approbation and reward are at the other. The athlete may provide the accomplishment but the fan creates the fame; neither Organized Baseball nor the players seem fully cognizant of the vital role played by the proles.

The fan, the ordinary Joe, has no property or intellectual rights in the game of baseball. But as Judge Medler averred, he cannot be made to pay in one context for something that a purported vendor acknowledges is free to all in another. Are player statistics property, or are they public information? If I say 511, .406, or 73, do you know the players I am referencing (Cy Young, Ted Williams, Barry Bonds, respectively)? How about the uniform numbers 3, 7, 24, and 44 (most famously Babe Ruth, Mickey Mantle, Willie Mays, and Henry Aaron)?

In the legal proceeding neither MLBAM nor the MLBPA contended that numbers associated with players were anything but common facts in the public domain, beyond the proprietary interests of anyone who might look for the protection of copyright, trademark, or patent. If a company wished to depict the line below in a fantasy game it was OK with them:

G AB R H 2B 3B HR RBI SB CS BB SO BA OBP SLG
161 591 129 195 38 2 41 117 16 2 97 65 .330 .430 .609


If, however, an “unlicensed” (i.e., nonpaying) fantasy league like CBC combined that line with the name “Albert Pujols,” well then it was violating the player’s “right of publicity,” depriving him of the benefit of his good name and constricting his future earnings. Mind you, the MLBAM/MLBPA position was not opposed to such conjoined use by newspapers, television, or internet media, as these uses were clearly First Amendment protected instances of free speech and, besides, provided free publicity that tended to boost rather than crimp player and league revenues.

As the court summarized the opposing positions, “... the Players’ Association and Advanced Media clarified that they are not claiming that CBC cannot use players’ playing records or biographical data; that they are challenging CBC’s use of players’ names in conjunction with its fantasy baseball games; that they are claiming that the identities of players are represented by their names; that they are concerned with protecting the players’ names; and that they are claiming that CBC uses players’ names in its fantasy baseball games in violation of the players’ right of publicity.” In response to this view, “CBC stated that its position is that players’ names and playing records, as used in its fantasy baseball games, are preempted by copyright law; that CBC’s use of players’ names and playing records in its fantasy baseball games does not violate the players’ claimed right of publicity; and that even assuming, arguendo, that CBC’s use of players’ names and playing records violates the players’ right of publicity, the First Amendment controls.”

Unlike the right of privacy, which is a personal right, the right of publicity is generally regarded as a property right. Indeed, the right of publicity is a curious notion of startlingly recent birth. Conceptually it may be said to go back to King Kelly's 1887 contract with the Boston Red Stockings, to whom he had just been traded by Chicago White Stockings. The contract called for $2000 in salary, in line with the league-wide salary cap, but also provided $3000 for the use of his likeness for advertising and promotional purposes. In reality, this was just a ploy to evade the salary limitations and induce Kelly to abide by the trade. As J. Gordon Hylton, Professor of Law at Marquette University, wrote, “What Kelly authorized was technically neither a trademark nor a copyright matter, but a waiver of what we today call his ‘right of publicity.’ The early history of the right of publicity is extremely murky, but this particular agreement seems to imply ... that Kelly's club could not use his image for commercial purposes without his permission. It would be interesting to know if early baseball card manufactures paid players for the use of their images. Honus Wagner's ability to stop the printing of cigarette cards with his photos in the first decade of the 20th century also suggests that something like the right of publicity was recognized prior to 1910.”

However, the term was never used in a legal context until 1953. As Judge Medler wrote in her opinion, “A fairly recent concept, according to the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915, 929 (6th Cir. 2003), this right ‘was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd Cir. 1953), where the Second Circuit held that New York’s common law protected a baseball player’s right [Wes Westrum] in the publicity value of his photograph, and, in the process, coined the phrase ‘right of publicity’ as the name of this right.’ Subsequently, in Zacchini, 433 U.S. at 573, where a performer in a ‘human cannonball’ act sought to recover damages from a television broadcast of his entire performance, the Supreme Court recognized that the right of publicity protects the proprietary interest of an individual to ‘reap the reward of his endeavors.’”

The poor devil Zacchini won his suit because his act, his sole means of livelihood, was expropriated. “However,” Judge Medler wrote, “CBC’s use of Major League baseball players’ names and playing records in fantasy baseball games does not go to the heart of the players’ ability to earn a living as baseball players; the baseball players earn a living playing baseball and endorsing products; they do not earn a living by the publication of their playing records. See Zacchini, 433 U.S. at 576. Moreover, CBC’s use of Major League baseball players’ names and playing records [unlike the complete depiction of Zacchini’s human-cannonball shot] does not give CBC something free for which it would otherwise be required to pay; players’ records are readily available in the public domain.”

On the free-speech front, the judge continued, “CBC argues, in the event it has violated the players’ right of publicity, that speech is involved in its fantasy games; that this speech does not differ from raw statistics published in newspapers; that the speech involved in its fantasy games is expression which is protected under the First Amendment; and that the First Amendment trumps the right of publicity in the circumstances of this case. The Players’ Association and Advanced Media argue that CBC’s games do not involve speech or the expression of ideas; that what is at issue in this matter is not speech; and that, therefore, the First Amendment does not apply.”

Wrong. Again from the ruling: “Speech which does not use ‘a traditional medium of expression’ does not receive less protection than more traditional means of speech.... As such, the First Amendment has been applied to flag burning, nude dancing, and wearing a jacket with obscenities. Id. (citations omitted). Moreover, the fact that expression appears in a novel medium does not preclude its being subject to First Amendment protection.”

An earlier landmark case in this area of nontraditional free speech involved the World Wrestling Federation (in Titan Sports v. Comics World, 87-0178). In 1989 Judge Peter K. Leisure ruled in the Southern District of New York that a poster bound into various wrestling magazines was not an infringement of the wrestlers’ right of publicity, even though the poster was bound and stapled into the center and could not be viewed without removing it from the magazine, which itself of course was first-amendment protected. “The constitutional protection of the freedom of the press does not stop at 8" x 11," the judge ruled.

Returning to baseball, a sport in which the conclusion is not scripted, Judge Medler added: “A defendant’s making a profit does not preclude its receiving First Amendment protection.... The court finds, therefore, that CBC’s deriving a profit from its use of the names and playing records of Major League baseball players in its fantasy baseball games does not preclude such use from having First Amendment protection.”

Baseball has always been, in the words of long departed Cubs’ owner Phil Wrigley, “Too much of a sport to be a business and too much of a business to be a sport.” Amen.

--John Thorn

 
 
Banner

Poll

Should MLB Force Jeffery Loria to Sell the Marlins?