Baseball Is a Game of Numbers, But Whose Numbers Are They?
Like no other corner of American popular culture, baseball communicates in numbers. From .406 (Ted Williams's 1941 batting average) to 755 (Hank Aaron's record home run total) to countless digits bandied about water coolers every morning, statistics convey ideas and images that, even overnight, become inseparable from the players to whom they belong.
This relationship between players and numbers, so often romanticized, is now being stripped to its skeleton in a lawsuit with considerably wider ramifications. While the dispute focuses on fantasy baseball -- in which millions of fans compete against one another by assembling rosters of real-life major leaguers with the best statistics -- a real legal question has arisen: Who owns that connection of name and number when it is used for such a commercial purpose?
Many onlookers have cast this issue as a tiff over batting averages -- as if children were squabbling over the backs of baseball cards -- but legal experts are saying it could affect the wider arena of celebrity rights, freedom of the press and even how the press is defined as the Internet age unfolds.
The dispute is between a company in St. Louis that operates fantasy sports leagues over the Internet and the Internet arm of Major League Baseball, which says that anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license. The St. Louis company counters that it does not need a license because the players are public figures whose statistics are in the public domain.
According to the Fantasy Sports Trade Association, more than 15 million people spend about $1.5 billion annually to play fantasy sports, virtually all of them using an outside service to keep track of rosters, players' statistics, trades and more. Most participate through Web sites run by CBS SportsLine, Yahoo and ESPN, which have paid Major League Baseball Advanced Media approximately $2 million apiece this year for licenses to display players' names and photographs, team logos and varying add-ons like video highlight clips.
The St. Louis company, CBC Distribution and Marketing Inc., operates through the Web site CDMsports.com. It runs its customers' leagues without player photographs (which are controlled by players in nonjournalistic commerce) or team logos (which are trademarks owned by the major league clubs). Like those of many smaller operators, the St. Louis company's games present only players' names and seasonal statistics, which the company says are newsworthy facts whose publication is protected by the First Amendment.
''We're disseminating information to the public about baseball players no different than what a newspaper does,'' said Rudy Telscher, a lawyer representing CBC. ''The American populace, at least a significant portion of it, has a fascination with baseball, they have a fascination with following the statistics, and I think the popularity of fantasy sports is borne right out of that passion for tracking the game and the statistics.''
Major League Baseball Advanced Media, which purchased the players' Internet and wireless rights from the players union in January 2005 for $50 million over five years, contends that the players' identities are being exploited in a business venture distinct from conventional journalism.
''What a company like CBC is selling is not nearly a repackaging of statistics,'' said Lee Goldsmith, a lawyer for Major League Baseball Advanced Media. ''They're selling and they're marketing the ability to buy, sell, draft and cut Derek Jeter, Alex Rodriguez, Albert Pujols. And part and parcel of the reason that people are willing to pay for that ability is the persona of Jeter, of Rodriguez, of Pujols.''
Bob Bowman, Major League Baseball Advanced Media's chief executive, said: ''The business here is not publishing statistics. The business here is running a league.''
The case is scheduled for jury trial in United States District Court in St. Louis beginning Sept. 5. CBC and Major League Baseball Advanced Media filed motions for summary judgment that the court could rule on in July.
Major League Baseball Advanced Media, which runs its own array of fantasy games on the league's portal, MLB.com, has decreased its number of licensees from dozens in 2004 to 19 last season to 7 this year, focusing on large multimedia outlets like CBS SportsLine and cutting out many of the four-figure licenses that had covered smaller operators' use of only names and statistics. CBC, which had a license from 1995 to 2004, filed suit to confirm that it has the right to use those limited materials freely.
Dozens of small, unlicensed fantasy-league operators, as well as their customers, are watching the case intently because a Major League Baseball Advanced Media victory could put those operations out of business, said Jeff Thomas, president of the Fantasy Sports Trade Association.