SBD/Issue 245/Sports Media

NFL Players Files Countersuit Against CBS In Fantasy Squabble

NFL Players Files Countersuit Against
CBS Over Fantasy Football Dispute
NFL Players, the commercial arm of the NFL Players Association, has fired back in its fantasy football legal fight with CBS Interactive Inc., filing suit against the media company late yesterday in U.S. District Court for the Southern District of Florida. Responding to the suit CBS Interactive filed last week in Minnesota, NFL Players claims the first filing both named the wrong defendant ­-- the non-profit NFLPA as opposed to the for-profit NFL Players Inc. --­ and is in the wrong venue. Additionally, NFL Players claims CBS Interactive is violating the players' intellectual property rights by operating a fantasy football game using their names and statistics without a license. "We don't believe the other courts will follow the CDM (Fantasy Sports) ruling, and that it doesn't apply to football," said Jeffrey Kessler, attorney representing NFL Players. "That was an erroneous decision and we expect a very different outcome here in the 11th Circuit." CBS declined to comment. NFL Players, in its filing, seeks several remedies: a declaration that CBS Interactive is violating its property rights; a transfer or dismissal of the CBS Interactive suit; compensatory and exemplary damages to be determined at trial; a permanent injunction against CBS Interactive from using NFL Players rights; a declaration that NFL Players is not violating the Sherman Act by demanding unauthorized parties from using its rights; and a "reimbursement, restitution, or disgorgement" of profits currently being garnered by CBS Interactive from fantasy football games using the players' rights. "The [CDM] ruling is not binding in any way in any jurisdiction outside the Eighth Circuit, the filing by NFL Players of an amicus curiae brief did not make NFL Players a party to that action, the denial of certiorari by the U.S. Supreme Court has no precedential effect whatsoever, and the Eighth Circuit in [CDM] was wrongly decided, is contrary to law, and is not applicable to [this] dispute," the filing reads.

DETAILED AGREEMENT: As part of the filing, NFL Players also included the full text of its fantasy licensing agreement with CBS Interactive for the year ended February 29, 2008, providing a level of detail surpassing even U.S. Labor Department documents that showed CBS paid the union a total of $1.49M during the period. The contract called for CBS Interactive to pay a guaranteed royalty payment of $700,000, a 8.5% royalty payment for net fantasy subscription-based revenues less that guaranteed sum, and royalties garnered from free, advertising-supported leagues. The free-league royalty schedule called for a payment of $0.11 for each of the first 500,000 registered players not in a CBS fee-based league, $0.09 for each player in the next half-million registrants, and $0.07 for every player thereafter.

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