CBS Interactive Inc. v. National Football League Players Association is the most recent case permitting the commercial use of professional athlete’s names and statistics without permission.

CBS Interactive operates the website CBSSports.com.  The NFL Player’s Association acts as the exclusive collective bargaining representative for active players in the NFL.  Among other things, the NFLPA has the right to license the use of the individual players’ names, signatures, facsimile, voices, pictures, photographs, likenesses, and biographical information in connection with “group licensing programs” involving six or more players (e.g., fantasy sports, video games, etc.).  NFLPA assigned this right to Players, Inc. in exchange for royalties.  Players, Inc. in turn licenses this right to companies like CBS to use in programs such as fantasy sports.  In fact, for several years CBS did just that, running both free and “pay for play” versions of its fantasy league under a license agreement with Player, Inc.

However, in 2008, CBS refused to renew its license after the Eighth Circuit in C.B.C Distribution and Marketing Inc v. Major Leage Baseball Advanced Media determined that use of baseball players’ names and statistics did not violate any right of publicity, but that even if it did, persons enjoyed a First Amendment right to use the players’ names and statistics that prevailed over any right of publicity.  When Players, Inc. threatened to sue, CBS brought an action for declaratory judgment that its use of player information was permissible under the CBC case.  The Minnesota District Court in the CBS case agreed.

The NFLPA and Players, Inc. attempted to distinguish CBS’s use of player information from the use in CBC case by claiming that they were used in such a way that users of the CBS fantasy football site might believe that the players endorsed the CBS site.  The Court rejected that theory because “the manner in which the player information is presented is akin to newspapers and magazines, which routinely display pictures and information about celebrities, including professional athletes.”  The Court also rejected the idea that the CBC case result stemmed from the unique place baseball holds as a “national pastime” since football arguably has a larger audience than even baseball.  The Court, therefore, found the CBC case controlling and granted CBS summary judgment.

–Matt