Who Owns the Rights to Fantasy League Games?

Many sports fans play fantasy baseball or football games.  Should the operators of on-line fantasy games, which generate millions of dollars in annual revenues, have to pay a licensing fee to Major League Baseball, the NFL, and/or their players for using game statistics and player names?  For example, does the unauthorized use of Brett Favre’s name and statistics in a for-profit NFL fantasy football game violate his right of publicity?

In my recently published article, A Triple Play For The Public Domain: From Delaware Lottery to Motorola to C.B.C., 11 Chapman L. Rev. 569 (2008), I argue: 

The creation of a collateral product incorporating merely public domain information about a sports event or athletes’ performances, including fantasy league games, is not (and should not be) infringing — absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act.

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Is Cheerleading A Sport?

Brittany Noffke, a ninth-grade student at Holmen High School, fell while practicing a three-person cheerleading stunt and suffered a severe head injury.  She sued Kevin Bakke, another cheerleader, for alleged negligence in failing to properly spot her during the stunt. Bakke defended on the ground he is immune from negligence liability under Wisconsin Stat. § 895.525(4m)(a).  This statute provides that a participant “in a recreational activity that includes physical contact between persons in a sport involving amateur teams” is liable only for causing injury to another participant by acting “recklessly or with intent to cause injury.”

In Noffke v. Bakke, 308 Wis.2d 410, 748 N.W.2d 195 (Wis. App. 2008), a Wisconsin appellate court held that cheerleading is not a “contact sport” for purposes of this statute.  The court initially assumed, without deciding, that cheerleading is an amateur team sport.  Finding that the statutory  meaning of “physical contact” is ambiguous, the court relied on the title of the statute (“Liability of contact sports participants”) and a dictionary definition of “contact sport” (“any sport that necessarily involves physical contact between opponents”) to define this term.  It concluded that, although “the risks and the athleticism involved in cheerleading are comparable to those in contact sports,” cheerleading is not a “contact sport” because “it does not involve physical contact between opponents.”  Therefore, Wisconsin Stat. § 895.525(4m)(a) does not bar Noffke’s negligence claim against Bakke.

The Wisconsin Supreme Court granted Bakke’s petition to appeal this ruling, and the case is awaiting decision after oral argument last fall.  

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Judge Extends Preliminary Injunction in NFL Doping Case

 

Judge Paul Magnuson extended his preliminary injunction barring the NFL from suspending Minnesota Vikings players Kevin Williams and Pat Williams and New Orleans Saints players Charles Grant, Deuce McAllister, and Will Smith for testing positive for bumetanide, an undisclosed banned substance in Starcaps, until a full hearing on the complex issues in this litigation is held. As a practical matter, this means these players will remain eligible to play through the NFL regular season.

The National Football League Players Association (NFLPA) is seeking to vacate two arbitration awards by Jeffrey Pash, the NFL’s chief legal officer, ruling that the players violated the NFL’s strict liability drug testing policy and should be suspended for four games.  The NFLPA contends that independent administrator of the NFL’s drug policy, a consulting toxicologist, and the NFL’s vice president of law and labor policy (who worked under Pash’s supervision) knew that Starcaps, a dietary supplement, contained bumetanide but deliberately failed to communicate this information to the NFLPA or the players in breach of their fiduciary duty.  The union also asserts that Pash’s arbitration rulings were biased and violated public policy by condoning this breach of fiduciary duty in violation of New York law.

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