## Facts

- C.B.C. Distribution and Marketing, Inc. operated fantasy baseball games in which customers “drafted” real Major League Baseball players and competed based on those players’ real-world performance statistics.
- The games used players’ names, playing records/statistics, and related biographical data that were publicly available.
- From 1995 through 2004, CBC licensed from the Major League Baseball Players Association the right to use player identity-related information in its fantasy products; the governing license expired at the end of 2004.
- After expiration, the MLBPA granted Major League Baseball Advanced Media, L.P. an exclusive license to exploit players’ publicity rights in the online fantasy baseball market.
- CBC continued operating and sought to use player names and statistics without entering a new license with Advanced Media.
- Advanced Media asserted CBC’s unlicensed use violated players’ Missouri right of publicity and also breached contractual provisions in CBC’s former license (including post-expiration restrictions and provisions limiting challenges to asserted rights).
- CBC filed a declaratory judgment action seeking a ruling that it could use player names and publicly available statistics without a license; Advanced Media counterclaimed and the MLBPA intervened.

## Issues

1. Whether CBC’s commercial use of MLB players’ names and playing records/statistics in fantasy baseball violates the players’ right of publicity under Missouri law.
2. Whether, even if the right of publicity is implicated, the First Amendment protects CBC’s use of players’ names and publicly available performance statistics in a fantasy game.
3. Whether post-expiration “no-use” and “no-challenge” provisions in the expired license are enforceable to bar CBC’s continued use and support breach-of-contract liability.

## Decision

- The court granted summary judgment for CBC on the publicity-rights and contract claims.
- The court held that CBC’s use of players’ names and playing records/statistics in its fantasy baseball games was protected by the First Amendment.
- The court rejected enforcement of the asserted right of publicity against CBC in this context.
- The court held the cited contract provisions could not be enforced to prevent CBC’s post-expiration use of publicly available factual information or to bar CBC’s challenge to the asserted rights.
- The court entered declaratory relief permitting CBC to continue using the players’ names and statistics in its fantasy baseball products without a license on the theories asserted.

## Legal Principles

- A state-law right of publicity, even if otherwise applicable to commercial use of a person’s identity, is limited by the First Amendment when the challenged use concerns truthful, publicly available matters of legitimate public interest.
- Player names and on-field performance statistics are factual information in the public domain; use of such facts in an expressive product is strongly protected when it does not suggest player endorsement.
- Right-of-publicity interests are weaker where the use does not create a false impression of sponsorship and instead uses identity elements as subjects of public interest information.
- Contract provisions cannot be enforced to withdraw public-domain factual information from public use where enforcement would conflict with First Amendment protections; post-expiration restraints are construed narrowly when asserted to bar dissemination of public facts.

## Conclusion

The court ruled that a fantasy baseball operator’s use of MLB players’ names and publicly available statistics in gameplay was constitutionally protected speech and could not be stopped through Missouri right-of-publicity claims or through the expired license’s post-expiration and anti-challenge provisions, allowing the operator to continue offering its games without obtaining a new license on the asserted theories.


C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006)