Take Me Out to the Shakedown

Professor Kaimipono Wenger of the Concurring Opinions blog considers the legal dispute between Major League Baseball and fantasy/rotisserie league operators, a topic which I last discussed a year or so ago . I commented on Professor Wenger's post, but I'll reproduce the comment below:

I can't say that I've become more appreciative of MLB's claims since I first blogged about this case (see here and here). This seems like a classic case of overreach and bullying by an established player faced with a threat to its market dominance.

Back in March of last year, Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, conveniently summarized the inherent weakness in MLB's case: "Player statistics are in the public domain. We've never disputed that. But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." Of course, public domain status would mean that the statistics could be used for any purpose, commercial or otherwise.

Ron Coleman pointed out that the case, weak as it is, would turn on the rights in the players' personalities (see here). Nevertheless, the players' names, not their personalities or images, are being used; the names are only incidental to the statistics which are in the public domain. For the same reasons that player names can be reported with their game-by-game statistics in the morning sports pages without payment of royalties, I think MLB's case will fall short; the only question in my mind is whether their market and financial strength will enable them to extract a compromise from the smaller and more fragmented fantasy/rotisserie league proprietors.

Speculating on a point I've not yet seen reported, if there would be any merit to MLB's player personality claims, it would be in the distinction between those fantasy leagues on the one hand and sports page statistics and statistics-based games like the old APBA Baseball on the other -- namely, the relevance of external, real world, real-time information on trading. The sports pages report past events; that a given player was implicated for drug use today or was involved in an altercation with a teammate last night has no bearing at all on his statistics from yesterday afternoon's game. Similarly, the use of past statistics in a game like APBA is unaffected by what subsequently happens to a player professionally or personally; if you're playing with Mark McGwire's or Sammy Sosa's 1998 statistics, it makes no difference that the former was allegedly on steroids at the time or the latter's career went rapidly downhill thereafter.

While fantasy leagues calculate their standings using actual performances -- "dead" statistics like those in the morning papers -- the critical team composition and trading aspects of the fantasy games rely in large part on assessments of a player's future performance; these assesments definitely take account of the personalities involved -- the player's work ethic, relationships with his teammates and managers, and his troubles off-the-field are all relevant and not reflected just in the box scores. In other words, would you want Player X who has a .399 batting average, a .610 slugging percentage, 713 home runs, and eight gold gloves over his lifetime? If you know that Player X is Barry Bonds, subject of the "Game of Shadows" expose on the BALCO steroids scandal, the focus of virtually-unprecedented media attention for that and for his pursuit of Babe Ruth's lifetime home runs record, a player with a combative stance toward the press and pretty much everyone else, and a mercurial sort generally, do you still want him? Perhaps, but maybe at a much lower fantasy price or only if you have the right team mix otherwise.

Once personality and real-world struggles are injected into the equation, the results can change. I don't think that this fact alone will produce a win for MLB, but it may just keep them in the ballpark.

[Update]