Last week, the US Supreme Court rejected an appeal from MLB and its players’ union, to hear their case arguing that their statistics were proprietary, and that players names and numbers in the sport were exclusively their property.
Why does this matter? Well, the Supreme Court’s decision not to hear the case was good news for fantasy sports fans, and especially the fantasy sport industry itself—a $500,000 a year, profit-making machine. By refusing to revisit the case, the Court was maintaining previous rulings that said—in essence—the statistics of professional sports are public domain. Fantasy sports sites can make use of that material without interference or added licensing costs. (Check out the Wall Street Journal for their hypothetical “Doomsday Scenario” if the Court had favored MLB…)
Anyway, the hockey bloggers at Illegal Curve drew their own short analysis of that court decision, as it applies to the NHL:
Drawing on the legal brainpower of Illegal Curve’s law student base, there is only one real way we can conceive of distinguishing this decision on baseball from any case that would relate to the use of NHL statistics. And it is this:
The 8th Circuit holding regarding the superseding of publicity rights of athletes was based on three prongs: 1) fantasy baseball statistics are already in the public domain; (2) major league baseball players are already “rewarded, and handsomely;” and (3) there is no danger that any consumers would be misled into believing the use of players’ names represents a product endorsement. But if we’re talking about the NHL here, we can do something that law people call “distinguishing on the facts.” Or in other words, we can say something about the NHL that makes it different than the MLB. And it’s this: Hockey statistics, at least in the US, are not in the public domain.
Illegal Curve refers to the lack of widespread exposure of hockey in the American media, but I’ll assume they’re being a bit facetious and say that I believe their point is moot. NHL boxscores do reside in the same public domain as MLB’s, and so the ruling could be said to apply to all professional sports.
To my knowledge, the NHL has never taken the official position that their statistics are proprietary—this legal issue has primarily been one for MLB, with the NBA and NFL giving the case personal attention. However if MLB had been successful in their legal bid, the chain reaction may well have had the NHL reconsidering their position.
But for now, there’s no issue and it would appear that your fantasy hockey team is safe; in fact, you can bet the entire industry is going to be bigger than ever.
On that note, some final comments from Eric Fisher in Sports Business Journal (subscription required) :
Even before Monday’s decision, many fantasy game operators had begun to reduce or eliminate their rights payments for fantasy games, or demand other intellectual property such as online game highlight video. Monday’s decision likely will embolden game operators further, and perhaps bring further revisions to MLBAM’s five-year, $50 million deal with the union for the players’ interactive rights. MLBAM last fall stopped making payments to the union on that deal and have not restarted them.
The business of sports in the digital age is an entirely new ballgame. If you’ll forgive the pun.
Note: Fisher’s off-hand assertion that “online game highlight video” is up for grabs is a story unto itself. The pro leagues may have lost the battle for their statistics, but you can bet they’re not ready to ascede control of their game video highlights. And that would most certainly include the NHL.
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