Baseball Fans Free to Fantasize

Via Neil Richards at Concurring Opinions:

The Eighth Circuit held today that any violations of Major League Baseball players’ state law rights of publicity implicated in a commercial fantasy baseball enterprise are preempted by the First Amendment interests of the enterprise and its customers.  Major League Baseball, which owns the players’ rights, cannot require that fantasy leagues license player names and statistics.

This is a plausible and probably right result, but the notion that the First Amendment offers a principled solution here is, I think, an illusion.  The majority opinion gives away the case with the following statement:  “[T]he information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone.”

The relevant information is clearly readily available to the public, but it doesn’t follow automatically that the information is therefore in the public domain.  That loose language would undo most of copyright law, for example.  A more transparent opinion might simply have declared that the property and privacy/publicity interests of Major League Baseball and its players simply extend only so far, and that the line, today, gets drawn here.  Baseball is the public’s game, and the court seems to think that the idea of the “national pastime” actually has content.  Call it “the First Amendment” if you like, but the line is essentially arbitrary in the sense that it might go here — or there.  The line simply has to exist. The decision really reminds me of James Earl Jones’s speech in Field of Dreams:

The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. It’s been erased like a blackboard, rebuilt, and erased again. But baseball has marked the time. This field, this game, is a part of our past, Ray. It reminds us of all that once was good, and it could be again. Ohhhhhhhh, people will come, Ray. People will most definitely come.

Ah – but.  We often don’t like to see the fuzzy, mushy romantic side of courts.  Perhaps, then, this should be the province of Congress.  I don’t imagine that Congress should legislate protection for fantasy leagues, though if baseball’s antitrust exemption were open for discussion, and if this is the right outcome, perhaps a renewal of the exemption could be conditioned on public access to sports information.  Instead, some cleaning up of preemption doctrine and the nebulous concept of the uncopyrightable “fact” might be in order.