Statistics can'tbe trusted. In most arguments they're used--as a poet said--the way a drunkmight use a lamppost: for support rather than illumination. And now some ofthose slippery, elusive, elastic numbers are at the crux of a bizarre legaldispute working its way through the digestive tract of American jurisprudence.At issue is who, if anyone, owns the statistics of major league baseballplayers. That's right: David Ortiz might own the Yankees, with a lifetimebatting average of .309 against them, but it isn't clear who owns Big Papi'sbatting average--or anyone else's, for that matter.
A company thatoperates fantasy baseball leagues--CBC Distribution and Marketing--is suingMajor League Baseball for the right to use the names and statistics of bigleaguers without first paying MLB a licensing fee. Yes, MLB charges a licensingfee to online fantasy baseball leagues for the right to use player statistics,as do all major pro sports leagues. Just when you thought sports had exhaustedall the ways to sell Nothing--"personal seat licenses" come tomind--this news arrives: The players' association sold the rights to use playernames, images, stats and the like, both online and on mobile devices, to MLBfor $50 million in a five-year deal.
Ben Clark is a St.Louis intellectual property attorney who is familiar with the case. "If Iwalk the two blocks from my office to the new Busch Stadium and see AlbertPujols go 3 for 4 with a home run and four RBIs, those facts are not in thepublic domain, not floating around for people to use?" he asks, with a noteof skepticism.
If not--and ajudge will hear the case in July--it could make for some very bland baseballbanter come August.
How was the game,dear?
On advice ofcounsel, I decline to answer.
The two sidesdon't even agree on what they disagree on. MLB, for instance, says it doesn'tclaim to own player statistics. "Statistics are in the public domain,"says Jim Gallagher, a spokesman for MLB's Internet branch. "Every newspaperin the country runs box scores every day of the season. It's when you useplayer statistics along with names, pictures, likenesses, nicknames, uniformsand logos for purely commercial gain or profit, then you need alicense."
Newspapers do allof the above without a license, but MLB acknowledges that their usage isprotected by the First Amendment. CBC's site uses only names and statistics,without photos or team logos, but the company is still required to pay MLB touse the names and stats in combination, raising the existential question, Whatgood is an ERA if you don't know whose it is? As Rudy Telscher, an attorneyrepresenting CBC, says, "You can't very well say '40 home runs' withoutsaying who hit them."
Clark says thatMLB might argue in court that fantasy sites infringe on a baseball player's"right of publicity"--that for-profit fantasy businesses essentiallyuse an athlete's name as an implied endorsement without his permission. But in1996 several retired major leaguers who played in an era before the players'association existed sued baseball over the unauthorized use of their names andstatistics in latter-day game programs and videotapes. Baseball argued that theinformation was historical fact in the public domain, and a California courtagreed. "Baseball," says Clark, "now risks hoisting itself on itsown petard."
If baseball winsin July, it could conceivably send cease-and-desist letters to anyone using aplayer's name and statistics for profit. Somewhere men are laughing andsomewhere children shout? No problem. There is no joy in Mudville, mighty Caseyhas struck out? Problem.
CBC's lawyerssuggest that a baseball victory would put any baseball question on Jeopardy! injeopardy. If baseball prevails, "Then Trivial Pursuit is a violation ofplayers' and movie stars' rights of publicity," says Telscher. "I can'task you what movie Sylvester Stallone was in." A ruling in MLB's favor,Telscher adds, would also affect Las Vegas sports books, which take bets on theperformance of individual players.
It is bothconfusing and comical, an Abbott & Costello routine: Who's on first, What'son second, I Don't Know's on third. And it is. Just don't ask whom Who likes toface in the clutch, or what What is batting in May.
In the end, asanother season gets under way this week, both sides might do well to rememberthe words of the late New York City columnist Jimmy Cannon, who wrote,"Baseball isn't statistics. Baseball is DiMaggio rounding second."
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David Ortiz might own the Yankees, hitting a career.309 against them, but it isn't clear who owns Big Papi's batting average, oranyone else's, for that matter.