U.S. Supreme Court Debating Whether to Hear CDM Fantasy Sports Case

The U.S. Supreme Court today will hold a private conference in which it will debate whether to hear the CDM Fantasy Sports case, a dispute that has raged for more than three years on the legal merits of using player names and statistics in commercial fantasy sports games without a license. The St. Louis-based CDM, now a part of Fun Technologies, prevailed in '06 at the U.S. district court level, and then twice more last year at the appeals court level. MLBAM and the MLBPA failed in a subsequent attempt to have an appeals court rehear the case. The Supreme Court conference is a regular weekly session in which it determines which cases to hear. While the panel declines to hear the vast majority of cases petitioned to it, MLBAM and the players’ union are seeking to improve their chances by arguing for a more consistent legal standard balancing the First Amendment and state-law publicity rights. A decision on the MLBAM/MLBPA petition for a writ of certiorari will be announced Monday. The NFLPA, which has even more extensive interests in fantasy sports than does baseball, has filed an amicus brief in support of MLBAM and the union. The MLBPA's May 13 reply to CDM’s filing opposing the petition for a writ, and the most recent filing in the case, reads in part, "Contrary to [CDM's] arguments, the First Amendment interests here are not substantial. [CDM] is offering a product -- fantasy baseball games -- for sale. The product incorporates players’ identities to entice consumer interest in what would otherwise be merely another prediction game. Unlike a newspaper’s publication of statistics, any transfer of information from [CDM] to consumers during the course of the game is purely incidental.” At least four of the nine justices need to vote in favor of granting the writ in order for the case to be heard.
By Eric Fisher, Staff Writer, SportsBusiness Journal