I. Introduction
Baseball has enjoyed a
special place in the hearts of American sports fans. It is touted as
America’s pastime. As Americans, judges are not immune to either the
love of the game or the special status it holds in American culture.
While other sports faced antitrust regulation with respect to the
reserve clause, baseball was exempted by the courts. [1] The reserve clause restricts the right of the player to contract with a team other than the one he is currently signed with.[2] Justice Blackmun, in his famous opinion in Flood v. Kuhn, pays homage to the baseball gods with a nearly seven-page-long introductory section entitled “The Game.”[3] This storied past of baseball (MLB) no longer holds sway as recent rulings evidence. Specifically, in the CBC v. MLB Advanced Media,
a federal district court recently held that MLB did not have rights
over player names and statistics so as to require fantasy baseball
leagues to purchase such rights from MLB.[4]
II. Analysis
The first part of this article addresses the treatment courts have
given to baseball in the past and present. A thorough analysis of
baseball case law is beyond the scope of this article; as such, a brief
history of seminal cases is presented. The second part, to be
published on November 27, 2006, will hypothesize why MLB has lost the
preferential treatment it once received.
Baseball received special treatment in the past but does not so
currently. In the past, as evidenced by a set of three cases
culminating in Justice Blackmun’s ode to baseball in Flood v. Kuhn, baseball was exempted from antitrust regulation as to the reserve clause while other sports were not [5] because baseball was held not to be interstate commerce in the pivotal case Federal Baseball.[6] More recently, as demonstrated by CBC v. MLB Advanced Media,[7] baseball has found itself on the short-end of potentially pivotal legal holdings.[8]
A. The legal precedent set by the trilogy of Federal Baseball, Toolson, and Flood demonstrates baseball’s once special place in the law.
Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs
is the seminal case in which the Supreme Court created MLB’s exemption
from the Sherman Antitrust Act (the Act). The Act, which prohibits the
restraint of trade, applies only to interstate commerce.[9] The court held that baseball was not interstate commerce; as such, the Act did not apply.[10]
In 1922 when Federal Baseball was decided, interstate commerce had a narrower definition which would later be expanded.[11] Even under this expanded definition, in 1953 the Supreme Court upheld the exemption.[12] The Court held favorably for baseball based on respect for the prior decision in Federal Baseball, the 30-year gap during which baseball expanded and thrived on the exception, and Congress’ failure to change the law.[13] The Court made this decision without addressing the key issue in Federal Baseball: whether baseball is interstate commerce.[14]
Flood at 275. The Court also pointed to expert opinion that stated
baseball would fail in the chaos that would follow if antitrust
regulation was applied to it.[15] Thus, the Court chose to protect baseball.
Other sports, although arguing that they too should be exempted
because they were not interstate commerce, were held to be subject to
the Antitrust Act.[16] The Supreme Court limited the exemption only to baseball.
In Flood in 1972, the Supreme Court finally held that
baseball was clearly within the definition of interstate commerce, but
for the same reasons as in Toolson, the Court continued to exempt baseball from federal antitrust law.[17]
An uncited reason may be that American judges once again protected
America’s pastime. The Court did consider expert opinion stating that
baseball would be ruined if the reserve clause was prohibited.[18]
In the time after Flood, the players’ association, the
baseball players union, finally escaped the oppressive trappings of the
reserve clause through contractual negotiations.[19] Struggles in the negotiations over the reserve clause were in fact a substantial cause of the player’s strike in 1994.[20]
As a result of the eventual success of these negotiations, Congress
drafted legislation that curtailed the special treatment baseball
received by finally passing the Curt Flood Act, named in honor of the
lead plaintiff in Flood v. Kuhn.[21]
B. The legal battle that is CBC v. MLB Advanced Media is an indication of the long forgotten traditional place of baseball in American culture.
In the recent case of CBC Distribution and Marketing v. MLB Advanced Media,
CBC, a company operating an internet fantasy baseball league for
profit, asked for a declaration from the courts that player names and
statistics were not excludible.[22] CBC had been
paying for licensing rights to the player information, but MLB Advanced
Media, the internet marketing arm of MLB, did not extend the offer when
the license ran its course in 2005.[23] Player
statistics are the fundamental basis of the fantasy league competition;
without statistics, there is no competition. As such, prohibition of
the use of the player names and statistics would prevent CBC from
conducting its fantasy baseball league business. The court held, based
on both the state right of publicity laws and federal copyright laws,
that the information could not be excluded from use publicly.[24]
First, under state law, the court held that player names and
statistics do not cause confusion so as to mislead customers that the
players themselves are in fact approving and endorsing CBC’s activities.[25]
Second, under copyright law, the court held that player names and
statistics are a non-unique compilation of fact and are news of the day
in the public domain that cannot be copyrighted.[26]
This ruling does not only hurt MLB’s bottom line, it sets a precedent
that may affect all other professional sporting leagues, which are
watching this case closely.[27] MLB may appeal this decision, but it is unlikely that MLB would succeed.[28]
III. Moving Forward
This ruling is merely one sign of the love lost between baseball
and the public. The public may have lost its love because of the sky
rocketing player salaries; the reports of unsportsman-like conduct such
as poor attitude, steroid use, or other off-the-field conduct; or union
hold-outs. It is not one of these factors alone, but all combined that
have made it apparent to the public that baseball is not just a sport,
a pastime as it were, but instead big business out for profit. The
courts have reflected this change in public opinion.
[1] See Flood v. Kuhn, 407 U.S. 258 (1972)(discussing the history of case law that created baseball's exemption from federal antritrust law).
[2] Peter M. Macaluso, Note, Bang the Gavel Slowly: A Call for Judicial Activism following the Curt Flood Act, 9 B.U. Pub. Int. L.J. 463, 467 (2000).
[3] Flood, supra note 1 at 260-67.
[4] CBC Dist. & Marketing, Inc. v. MLB Advanded Media, 443 F.Supp.2d 1077, 1107 (E.D. Mo. 2006).
[5] Flood, supra note 1 at
276-277 (comparing the treatment of boxing, which was subject to
federal antitrust regulation, to the treatment of baseball).
[6] Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200, 201-06 (1922).
[7] Flood, supra note 1.
[8] Michael McCarthy, USA Today, Fantasy Leagues can use baseball stats (August 9, 2006) http://www.usatoday.com/sports/baseball/2006-08-08-fantasy-statistics_x.htm?POE=SPOISVA&POE=click-refer.
[9] Macaluso, supra note 2 at 464-65.
[10] Id. at 466.
[11] Id. at 467.
[12] Toolson v. NY Yankees, Inc., 346 U.S. 356, 357 (1972).
[13] Flood, supra note 1 at 273-74.
[14] Id. at 275.
[15] Id. at 274.
[16] Id. at 276-77.
[17] Id. at 282-87.
[18] Id. at 274.
[19] Macaluso, supra note 2 at 476-77.
[20] Id.
[21] Id.
[22] CBC, supra note 4 at 1081-82.
[23] Id. at 1081.
[24] Id. at 1107.
[25] Id.
[26] Id.
[27] McCarthy, USA Today, supra note 8.
[28] Jeff Douglas, AP, Fantasy Leagues allowed to use MLB stats (August 8, 2006) http://abcnews.go.com/Sports/wireStory?id=2289040.