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Statistics can't be trusted. In most arguments they're used--as a poet said--the way a drunk might use a lamppost: for support rather than illumination. And now some of those slippery, elusive, elastic numbers are at the crux of a bizarre legal dispute working its way through the digestive tract of American jurisprudence. At issue is who, if anyone, owns the statistics of major league baseball players. That's right: David Ortiz might own the Yankees, with a lifetime batting average of .309 against them, but it isn't clear who owns Big Papi's batting average--or anyone else's, for that matter.
A company that operates fantasy baseball leagues--CBC Distribution and Marketing--is suing Major League Baseball for the right to use the names and statistics of big leaguers without first paying MLB a licensing fee. Yes, MLB charges a licensing fee to online fantasy baseball leagues for the right to use player statistics, as do all major pro sports leagues. Just when you thought sports had exhausted all the ways to sell Nothing--"personal seat licenses" come to mind--this news arrives: The players' association sold the rights to use player names, images, stats and the like, both online and on mobile devices, to MLB for $50 million in a five-year deal.
Ben Clark is a St. Louis intellectual property attorney who is familiar with the case. "If I walk the two blocks from my office to the new Busch Stadium and see Albert Pujols go 3 for 4 with a home run and four RBIs, those facts are not in the public domain, not floating around for people to use?" he asks, with a note of skepticism.
If not--and a judge will hear the case in July--it could make for some very bland baseball banter come August.
How was the game, dear?
On advice of counsel, I decline to answer.
The two sides don't even agree on what they disagree on. MLB, for instance, says it doesn't claim to own player statistics. "Statistics are in the public domain," says Jim Gallagher, a spokesman for MLB's Internet branch. "Every newspaper in the country runs box scores every day of the season. It's when you use player statistics along with names, pictures, likenesses, nicknames, uniforms and logos for purely commercial gain or profit, then you need a license."
Newspapers do all of the above without a license, but MLB acknowledges that their usage is protected by the First Amendment. CBC's site uses only names and statistics, without photos or team logos, but the company is still required to pay MLB to use the names and stats in combination, raising the existential question, What good is an ERA if you don't know whose it is? As Rudy Telscher, an attorney representing CBC, says, "You can't very well say '40 home runs' without saying who hit them."
Clark says that MLB might argue in court that fantasy sites infringe on a baseball player's "right of publicity"--that for-profit fantasy businesses essentially use an athlete's name as an implied endorsement without his permission. But in 1996 several retired major leaguers who played in an era before the players' association existed sued baseball over the unauthorized use of their names and statistics in latter-day game programs and videotapes. Baseball argued that the information was historical fact in the public domain, and a California court agreed. "Baseball," says Clark, "now risks hoisting itself on its own petard."
If baseball wins in July, it could conceivably send cease-and-desist letters to anyone using a player's name and statistics for profit. Somewhere men are laughing and somewhere children shout? No problem. There is no joy in Mudville, mighty Casey has struck out? Problem.