Wednesday, June 24, 2015

MLB licensing and the First Amendment

Fans often ask how Baseball Mogul is able to use team names and player names without securing a license with either the Major League Baseball Players Association (MLBPA) or Major League Baseball (MLB). As this topic of discussion has come up again over at Steam, I am re-posting the information here.

Under United States law, fantasy sports games and computer games have a right to use team and player names and statistics, protected by the First Amendment to the United States Constitution, and no license is required to enjoy this right.

This right was unambiguously upheld in the case of C.B.C. Distribution v. Major League Baseball (United States Court of Appeals for the Eighth Circuit, 2006).

The judges ruled unanimously "that the First Amendment applies to fantasy baseball games, so that even if the players and teams did have a right of publicity in their names and playing records, game developers and publishers would have a free speech right to use them".

Major League Baseball appealed to the United States Supreme Court, but were denied a writ of certiori, leaving the 8th District Court's ruling as the law of the land.

I am not a lawyer. I just know that we have followed that ruling for the last 9 years, and our own legal counsel strongly affirms that we are well within the law.

Why does FIFA still exist?

I know the one reason why the NFL still exists -- because they own the team names. Roger Goodell can make a complete fool of himself as the CEO of a non-profit corporation and still take home more money than 2,800 Wal-Mart employees, because he gets paid by 32 billionnaires who own the rights to the 32 very popular team logos.

Tom Brady and Rob Gronkowski could go start a new league and take all the players with them. But they would be playing for the New England Regulars or the Boston Minutemen. I could argue that the players would eventually win out -- that the fan base would switch from watching scrubs in NFL uniforms to star players on teams with new names (in new stadiums, in many cases). But it's a heavy lift and a huge risk for hundreds of players who worked all their lives just to get to the NFL.

The same is true for the MLB, NBA and NHL. You can't succesfully form a players' league because, at the end of the day, fans root for laundry.

But FIFA ... I don't get why they still exist. They don't own any teams or stadiums. They don't own "world cup" and they don't even control the Laws of the Game (that responsibility falls to the International Football Association Board).

And the logos that they own the trademarks to look like they could have been designed by a 7th grader:


Without FIFA, you can still have the World Cup and the European Championship every four years. Brazil and Germany and England would all still have national teams. The Premier League and La Liga and the Bundesliga would all continue without a hitch (and they could even stop worrying about the 2022 World Cup taking a huge chunk out of their seasons). Many fans of Arsenal and Barcelona and Man-U probably wouldn't even notice if FIFA just disappeared from the face of the earth tomorrow.

Unlike the NFL, which sets up a struggle between the teams and the players, soccer's constant battle is one with the teams, players and countries all aligned against FIFA's mismanagement, corruption and ridiculous sexism.

I don't get it.