CBS Interactive v. NFL

Citation: CBS Interactive Inc. v. National Football League Players Ass’n, 2009 WL 1151982 (D. Minn. Apr. 28, 2009).

Factual Background
CBS Interactive, (“CBS”), maintains a website, “CBSSports.com,” whereby it operates “fantasy sports” games including fantasy baseball and fantasy football. To facilitate these games (some free and some offered for a fee), CBS compiles and posts news and statistics on professional athletes and publishes player biographies and likenesses.

In years prior to the 2008/2009 NFL regular season, CBS entered into a licensing agreement with Players Inc. to use, in connection with fantasy football games, the “names, likenesses (including without limitation, [jersey] numbers), pictures, photographs, voices, facsimile signatures and/or biographical information” of NFL players. Players Inc. is a partially-owned subsidiary of the National Football League Players Association, (“NFLPA”), which acts as the exclusive collective bargaining representative for active players in the NFL. After the expiration of the agreement between CBS and Players Inc. in February 2009 Players Inc. approached CBS to discuss CBS’s continued use of the names and statistics of NFL players and demanded payment of licensing fees. CBS refused to make payments and responded with a 2005 Eighth Circuit decision in favor of CBS regarding fantasy baseball. The Eighth Circuit granted a declaratory judgment in favor of CBS regarding its use of baseball players’ names and statistics in connection with fantasy baseball. While the court acknowledged that the use of such information without paying a licensing fee was a violation of the players’ right of publicity, those rights were balanced against First Amendment considerations and CBS was allowed to proceed without payment of fees. In the present case CBS seeks summary judgment on its claim for a declaratory judgment allowing it to use the statistics and likenesses of NFL players without the need to pay licensing fees to Players Inc. Players Inc. argues that the Court lacks subject matter jurisdiction, that summary judgment is premature, and that there are several genuine issues of material fact that distinguish this case from CBS’s case regarding fantasy baseball. The court dispensed with Players Inc.’s first two claims and ultimately granted summary judgment in favor of CBS finding the fantasy baseball case controlling on the issue. Players Inc. argued that there were differences in the “package” of information about players provided by CBS in connection with fantasy baseball and fantasy football and that the additional information posted in violation of the NFL players’ rights of publicity distinguished this case from the case concerning fantasy football and that to allow CBS to use player information and likenesses without properly licensing them could lead to confusion over NFL endorsement of the CBS webpage. The Court noted that the information provided by CBS in connection with fantasy baseball was actually as extensive as that provided for use in fantasy football and that regardless, under the Eighth Circuit’s decision, the controlling question is not whether the information infringes the players’ rights but whether it may be used anyway to comport with CBS’s First Amendment rights. With regard to possible confusion over endorsement the Court failed to find any convincing evidence to suggest such confusion would take place and noted that the CBS webpage contained not only the information in question but advertisements for CBS and third parties. In a Hail Mary attempt, Players Inc. argued that the Court should delay ruling on the motion for summary judgment to allow time for discovery concerning CBS’s intent in using NFL players’ property without proper licensing. The Court, however, held that neither CBS’s business strategy nor its subjective intent factored into its First Amendment right to publish freely available public information,