A pitch for judicial review: Will the Supreme Court swing?

St. Louis Daily Record & St. Louis Countian, Mar 1, 2008 by Donna Walter

As professional baseball players practice in Florida and Arizona, team owners and the players union are taking on fantasy baseball in Washington, D.C.

They asked the U.S. Supreme Court last week to consider whether the First Amendment trumps athletes' rights to control the use of their own identities.

The case pits players and team owners against CBC Distribution and Marketing Inc., a St. Louis-based fantasy baseball provider.

"There are several different tests that courts have used to decide cases such as this," said Steven A. Fehr, one of the union's outside lawyers, who practices at the Jolley Walsh Hurley Raisher & Aubry law firm in Kansas City.

"It seems to us that is exactly the type of case the Supreme Court should be interested in reviewing."

Fantasy baseball and other sports are a $1.5 billion industry, according to the brief filed by the Major League Baseball Players Association.

But the fact that fantasy baseball providers make a profit using players names and statistics doesn't disqualify them from First Amendment protection, said Alan J. Howard, a law professor at Saint Louis University School and an expert on the First Amendment.

"It's hard to think why they [fantasy baseball providers] don't have a First Amendment right to use that information the way they use it, as opposed to the way the [St. Louis] Post-Dispatch uses the same information," said Howard, who is not involved in the case.

Fehr disagrees. "The use of identities for a commercial venture such as this should not be protected under the First Amendment," he said.

CBC had license agreements with the players association from July 1, 1995, through Dec. 31, 2004. But after the 2002 agreement expired, Major League Baseball Advanced Media refused to grant CBC a new license. Advanced Media, which represents team owners, paid the players association $50 million for a five-year contract that deals primarily with fantasy rights, according to documents filed by CBC in the federal trial court in St. Louis.

CBC is represented by Rudolph A. Telscher Jr., a principal at Harness, Dickey & Pierce in Clayton. He did not immediately return a phone call seeking comment.

In October, a three-judge panel of the 8th U.S. Circuit Court of Appeals said the First Amendment gives fantasy baseball providers the right to use players' names and statistics for their leagues. Two of the judges further held that CBC didn't give up its First Amendment rights through any contract. Judge Steven M. Colloton disagreed. In November, the 8th Circuit denied Advanced Media's motion to have the full court review the case.

The 8th Circuit applied an "ad hoc balancing test" to this case, the players and owners charge in their brief. The test, they said, balanced "society's interests in use of the person's identity against the particular economic and non-economic interests of the famous person whose identity is being used."

Ballplayers' statistics are readily available in the public domain, the public is interested in this information, and players are handsomely rewarded for their playing and from endorsement deals, the 8th Circuit reasoned.

But the appellate court should have applied Missouri's so-called "predominant purpose" test to weigh state law publicity rights against First Amendment interests, the players argued. Had the court used this test, it would have upheld the players' publicity rights, they said.

Advanced Media and the players association asked the Supreme Court to decide on the appropriate legal test to balance these competing interests. Six tests have been established by different state and federal jurisdictions, they said.

The "same use of a famous person's identity will be unlawful or constitutionally protected depending upon which jurisdiction first addresses that use -- an outcome that is fundamentally unfair, particularly to national businesses, and wholly inconsistent with a uniform interpretation and application of the First Amendment," they argued in their brief.

Virginia A. Seitz, of Sidley Austin in Washington, D.C., is the counsel of record for Advanced Media and the players association.

CBC was founded in 1991 by spouses Brian and Carol Matthews, both former McDonnell Douglas employees, and Charlie Wiegert, a former journalist with the St. Louis Suburban Journals. The three sold the company because of legal fees related to the case, Telscher said after arguments at the 8th Circuit.

Toronto-based FUN Technologies bought CBC in August for $2.5 million in cash, the assumption of about $2.1 million of net obligations and the issuance of 146,279 common shares of the company, according FUN Technologies' Web site.