Friday, July 28, 2006

MLB's assault on fantasy leagues

For the past eight years I've run a fantasy-football league for a group of friends and colleagues. It's strictly small time: The $10-per-owner annual fee covers the cost of hosting the league, with enough left over for minor prizes: The Super Bowl winner and total points winner get their $10 back; the Super Bowl winner also gets a small trophy.

We're people who play for fun, not money. If the cost of playing went up substantially, we'd have to reconsider our hobby.

Which is why I find a recent move by Major League Baseball to be, well, disturbing.

In a federal lawsuit, Major League Baseball claims that it owns Joe Mauer's hits, Justin Morneau's home runs, Johan Santana's strikeouts -- and the statistics of every other player in the major leagues. If fantasy leagues want to use player statistics in their games, baseball says, they better be prepared to pay.

MLB's argument is based on the established principle that players -- and the league -- have the right to control the commercial use of their "names and likenesses." That's why a golf-club manufacturer can't use a picture of Tiger Woods to sell clubs unless he gets Tiger's permission -- and pays him handsomely.

But what MLB is asserting is that a professional ballplayer's statistics fall under that doctrine. So even if you count all of a player's at-bats yourself, you still have to pay the league in order to use that information for commercial purposes.

A fallback argument is that even if you can use the statistics, you cannot use player or team names and images without paying MLB.

I don't play fantasy baseball, but if MLB were to win this suit, other leagues -- including the NFL -- could try the same thing. Fantasy sports would likely get a lot more expensive and centrally controlled, and I'd have to find a new hobby.

I'm no lawyer, but MLB's case seems shaky to me, especially regarding statistics. Private services have long provided game statistics to newspapers, for example. Those services are also how fantasy sites get the statistics they need. MLB never had a problem with that, even though such services are clearly profiting from the league's "names and likenesses."

They may have a better case regarding names and images, but that turns on whether the fantasy sites are using that information for a purely commercial purpose -- a la the golf-club ad -- or are merely presenting facts and information, a use protected by the First Amendment.

In any case it's a dumb move on MLB's part. Fantasy sports engender good will and increased fan interest in baseball. Indeed, it's about the only way I can ever imagine becoming interested in baseball, which I find tedious to watch -- and frustrating, too, since there's no way I'll be able to see all 162 games in a standard season.

In it's greed-fueled quest for control, MLB threatens to damage a hobby that probably has helped baseball's bottom line far more than it has harmed it. It's the sports equivalent of Digital Rights Management, in which publishers are destroying they're online market through greed and fear.

That's my take. Here's a good (and amusing) analysis of the case from Legal Affairs magazine, which notes a few fun facts:

1. The NBA lost a similar case back in the 1990s, in which they asserted copyright ownership of player statistics; the result is that "real-time" statistics are public domain.

2. Baseball won a similar case in the 1970s against two Minnesota game companies, saying the use of player names and statistics in such games was improper. They won, and now such games require MLB licensing.

3. But MLB also won a 1996 case in which it claimed that it had the right to use video of a player without that player's permission, based on freedom of the press principles.

That MLB can be self-servingly hypocritical should surprise no one. Still, the case does raise some legitimate questions about where the line should be drawn, and will probably revolve around resolving the conflicting rulings in the three cases above. I just hope that rationality wins the day -- or that MLB realizes that its case is ill-considered even if valid.

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Blogger Douglas said...

I don't have fantasy baseball as a hobby, but I find MLB's claim to be analogous to the Government claiming to own the votes of legislators, and wanting to charge the voters for knowing how the legislators voted. I hope I'm not giving anyone ideas.

7/30/2006 9:45 PM  
Blogger Sean Aqui said...

LOL! Me neither. Although such government information is, by definition, public record. Unless Congress passes a law saying it isn't....

7/31/2006 7:14 AM  

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