The Death of Fantasy Sports as We Know It?

Jan 2, 2009

CBS Interactive Inc. Commences Lawsuit against the National Football Players Association Regarding Fantasy Football
By Jarett L. Warner
Recently, CBS Interactive Inc., operating through one of its divisions, (CBS) commenced a lawsuit against the National Football Players Association (NFLPA) in the United States District Court, District of Minnesota.
In its complaint, CBS states that it is a fantasy sports leader and that NFLPA has threatened it with litigation if CBS does not pay NFLPA license fees for the use of its statistics and that if CBS takes any action to challenge the license fees, NFLPA “will never again grant rights necessary to operate fantasy games and will therefore put out of the fantasy football business.” CBS notes that NLFPA has taken this position despite the fact that the Eighth Circuit Court of Appeals previously decided the same issues in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. (8th Cir. 2007), that was reviewed by the Supreme Court of the United States.
CBS provided certain background information in its complaint. This included an explanation of the model of most fantasy sports game, that being that a league participant partakes in a draft during which he or she picks a roster of players from the professional league’s actual players, during the course of the season the participant may modify his or her team by trading, adding or releasing players, and that the participant competes against other teams based upon the statistical success of the players on the respective teams. The leagues utilize publicly available statistics. Previously, CBS entered into multiple licensing agreements with the NFLPA through its licensing entity, National Football League Player Incorporated, the most recent of which expired on February 29, 2008. According to CBS’ complaint, between February and August, 2008, NFLPA approached CBS to discuss its continued use of the names and statistics related the NFL’s players based on its assertion of intellectual property rights.
CBS’ complaint contains the following causes of action:
• Declaration that to the extent the right of publicity has been violated or infringed by CBS’ operation of fantasy sports, the First Amendment supersedes the right of publicity;
• Declaration that to the extent the right of publicity has been violated or infringed by CBS, federal copyright law preempts the right of publicity;
• Declaration that CBS’ operation of fantasy football leagues, does not infringe upon any right of publicity owned or controlled by NFLPA; and
• Declaration that NFLPA seeks to monopolize the market for creation and maintenance of fantasy football games in violation of §2 of the Sherman Act as NFLPA “seeks to extract monopoly profits from the entire industry by charging licensing fees for the use of publicly available information and, on information and belief, threatening objectively baseless litigation against businesses that do not succumb to its demands.”
In addition to the declaratory relief sought, CBS seeks an award of treble damages and attorneys’ fees and costs relating to NFLPA’s violation of the Sherman Act, injunctive relief enjoining NFLPA from interfering with CBS’ fantasy sports business.
As avid fantasy sports participants may recall, in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), the United States Court of Appeals for the Eighth Circuits held that First Amendment rights outweigh state law rights of publicity as the information in fantasy baseball games are readily available to the public. However, the Court also arguably limited its holding to fantasy baseball as it stated that “[c]ourts have also recognized the public value of information about the game of baseball and its players, referring to baseball as ‘the national pastime.’ C.B.C. Distribution, 505 F.3d at 823 (citations omitted).
It appears that the U.S. District Court, District of Minnesota should guide itself based upon the C.B.C. Distribution decision and that fantasy football should be safe for now.
As far as this writer’s own fantasy football team, that’s a different story . . . .
Jarett L. Warner is an associate at Havkins Rosenfeld Ritzert & Varriale, LLP in New York, New York. He specializes in the defense of professional and minor league sports teams in personal injury actions and litigations arising out of stadium construction. He has also counseled risk managers, venue owners and operators, general counsels and clients with self-insured retentions to minimize liability and to develop successful litigation strategies. He can be reached at or (646) 747-5104.


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