An earlier court ruling appeared to have clarified the issue when CDM Sports won the right to use the real identities and scores of baseball players in its fantasy leagues. The Supreme Court refused to hear an appeal by baseball authorities earlier this summer and fantasy game operators had taken the ruling to mean that player identities and scores were in the public domain.
CBS Interactive, the online publishing arm of CBS, proceeded to publish its fantasy American football game this year but for the first time did not pay Players' Association fees. The Association requested fees, though, and the company has now asked the District Court of Minnesota to declare that it has the right to use the data without a licence.
"CBS Interactive seeks a declaration and a reaffirmation that the Players' Association may not seek to control the use of player statistics in fantasy games and may not continue to extract money from CBS Interactive for the use of publicly available football statistics," said the suit.
The Players' Association had been a party to the baseball lawsuit, CBS said. "The Players' Association claims that decision does not prevent it from continuing its efforts to collect nationwide monopoly royalty fees," said the suit.
Fantasy games are a multi-million dollar business in the US where strict betting laws curtail opportunities to bet online on sporting events. Fantasy leagues – where players assemble a fictional team using notional money and gain scores for individual players' performances – generally offer prizes for the highest scores at the end of a season.
The suit says that the Players' Association asserted intellectual property rights in the names and statistics of players. CBS claimed it was threatened with litigation if it failed to pay the requested fees.
CBS has asked the District Court to declare that the first amendment to the US constitution, which guarantees the right to free speech, is stronger than players' right of publicity and federal copyright law.
CBS also claims in its suit that the Association seeks to monopolise the market for fantasy American football games in contravention of competition laws.
In the CDMsports.com case the Appeals Court wrote: "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone".
A UK court would be likely to issue a similar ruling, one expert said. "If a similar case came before the High Court in England based on football statistics it would likely focus on trade mark rights, database rights and personality rights," Iain Connor, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, said at the time of the CDM ruling. "But the decision would surely be the same as in the US."
"Such a claim would fail for essentially the same reason – the information is publicly available and whilst money is being made from the fantasy league it is not made at the expense of any particular individual," said Connor.