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
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,
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
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
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.