yahooffMy initial reaction to the news of yahoo filing suit against the NFLPA was shock. Shock that this wasn’t already an established issue in Yahoo’s favor. (In fact I had just talked to my dad the day before about how courts had held sports statistics as facts when we were discussing the Seinfeld Aptitude Test case.)

However the NFLPA’s alleged threat to file suit against Yahoo  and the decision in their favor (Gridiron.com, Inc. v. Nat’l Football League, Player’s Ass’n, Inc., 106 F. Supp. 2d 1309, (S.D. Fla. 2000)) made me realize the issue was far from established. Similarly Yahoo’s decision to file in Minnesota (far away from it’s Sunnyvale headquarters) is now obvious as well. The court in Minnesota has already decided a similar case in CBS Interactive Inc., v. NFLPA, Inc.

Unfortunately I don’t have hours and hours to dissect the courts’ differing decisions. However a quick review of both decisions revealed the following:

In CBS the MN court found that the 8th circuit court’s precedent in CBC v. MLBPA applied to the facts of the case.* The NFLPA fought the summary judgment motion on a number of procedural ground but no substantive grounds. Thus after finding none of the procedural grounds persuasive the court granted CBS’ summary judgment motion with little analysis. The court did note that:

The printouts of CBS Interactive’s website fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made.

Put simply since the player’s information in connection with the fantasy football website is not an endorsement.

In Gridiron.com the court made the opposite conclusion:

Plaintiff uses these players to promote their websites in order to solicit third party advertisements. The websites, in and of themselves, are products, based on certain comments made by Plaintiff, the interpretation of the GLA by the NFLPA and the NFL Players, and by the plain meaning of the term describing the aggregation of the Players’ sites and the fantasy football game. The cases cited by Plaintiff do not stand for the proposition that a website is not a product.

Thus the court in Gridiron found the player’s information on the websites an endorsement. Additionally the court found that Gridiron’s use was not protected by the first amendment.

MLB Ad Parody

MLB Ad Parody

Plaintiff seeks to utilize the players it contracts with to use their images and have them perform functions that go way beyond merely conveying the news...Plaintiff actively sought out and obtained over 150 NFL Player’s publicity rights, and now argues that the information the websites produce are entitled to Free Speech protection. Plaintiff’s argument is not persuasive.

So what do you think? Are fantasy sports sites’ use of players’ statistics, biographical information, and images endorsements or relevant factual information?

One final note in CBS the NFLPA argued that “it is not clear whether the public’s interest in football statistics is equal in degree to the interest in baseball statistics, and, therefore, ‘there may be . . . weaker First Amendment interests at stake in this case.’” I would love to see MLB try and turn this into an advertising campaign. Even the NFLPA thinks baseball is better ….

* For a detailed analysis of CBC v. MLBPA see 121 Harv. L. Rev. 1439