Fantas-tic News for Hockey Poolies

The News

As the world learned during the trial of one Orenthal James Simpson, sports and the law often find themselves intertwined. Legal issues have been at the forefront of hockey news in the last few days. The lawsuits stemming from the problematic business dealings of Anaheim Ducks owner Henry Samueli have not only put his ownership of the team in doubt, but has raised issues pertaining to the potentiality of Ducks GM Brian Burke being able to escape from his contract with the club in order to seek the GM position in Toronto. This, in turn, has raised a myriad of legal issues pertaining to the ability of one team to make overtures to executives of other clubs while said executives are still under contract. Similarly, the current bankruptcy proceedings in court against a minority owner of the Nashville Predators has precipitated a new wave of speculation that Research in Motion billionaire Jim Balsille may have a new avenue by which to pursue his ownership ambitions and eventually relocate a club to southwestern Ontario (a move which itself would raise a number of antitrust-colored legal issues). And don’t even get me started on the fight over the HNIC theme song…..

But the truth is, if you want to read about any of those issues in depth, you can easily do so in this week’s National Post or whatever American papers cover hockey these days. On the other hand, the hockey-related legal issue we’re going to talk about here is one which, while not as highly publicized, still has significant bearings on the life of devoted fans. The issue I’m speaking of is, of course, the right of fantasy sports sites to use the names and statistics of professional athletes. While the relevant court decision was about baseball-related sites, it has clear bearing on all other sports, including hockey.

The Case

Last week, the Supreme Court of the United States declined to hear the case of C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P. The Supreme Court has jurisdiction to hear appeals from lower courts; electing not to do so effectively upholds the lower decision. In this case, the 8th Circuit Court of Appeals had previously decided that fantasy sports sites were free to use the names and statistics of MLB players based on the sites’ [U.S. Constitution’s] First Amendment rights, and that these rights superseded (ie: took priority over) any of the players’ rights to control their own publicity.

The Illegal Curve Legal Analysis:

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. As Tiger Woods asked last week when questioned as to who he thought would win the Stanley Cup, “Does anyone in this country even follow hockey anymore??”

But for the sake of fantasy hockey players everywhere, let’s hope that little difference doesn’t really matter (and don’t worry…it doesn’t!).

For Illegal Curve, I’m Jim “The Hammer” Shapiro.
(aka Steve Werier)