SBD/Issue 36/Sports Media

MLBAM Files Request For Rehearing In CDM Fantasy Lawsuit

MLBAM Seeking To Have CDM
Lawsuit Reheard In Appellate Court
MLBAM, as expected, late yesterday filed its request with the U.S. Court of Appeals of the Eighth Circuit for a rehearing of the CDM Fantasy Sports lawsuit. Following similar legal ground as its co-appellant, the MLBPA, MLBAM argues the initial appeal court ruling earlier this month in favor of CDM places too much weight on First Amendment rights at the expense of state-law commercial interests. “The [appeals court] panel, like the district court, has mapped a treacherous line between the First Amendment and state-law publicity rights,” the filing reads. “As the MLBPA’s petition for rehearing explains, the panel’s conclusion that the First Amendment nullifies state law restrictions on commercial fantasy game providers’ ability to free ride on famous persons’ personas is erroneous and an issue of extraordinary importance. ... The panel’s conclusion that it could reach and resolve important constitutional and wide-reaching licensing questions without giving the parties notice and an opportunity to be heard on this linchpin issue implicates fundamental notions of due process.”

OTHER PROPERTIES VOCAL: A group of large sports properties, including the NFL, NBA, NHL and NASCAR, yesterday repeated its collective amicus brief filing from early this year, speaking out in favor of MLBAM and the MLBPA and urging for a reversal of the decision in favor of CDM. “The panel’s decision threatens to undermine the validity and enforceability of the non-use and no-contest provisions in scores of intellectual property license agreements into which [we] have entered, and eradicate the right of publicity for anyone who has achieved sufficient fame to make the right worth protecting.” There is no timetable for the appeals court to decide upon the rehearing request, though it is likely it will first give CDM an opportunity to respond.

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