A Look At the Yahoo! v. NFLPA: Are Player Stats Copyrightable?

I am pleased to temporarily step aside as the main author of this blog and present a blog written by one of our legal interns, Mr. Lincoln Cohoon. While I generally don't cover sports as part of my realm of "entertainment," the recent case with Yahoo! and the Player's Association presents copyright issues that are simply too juicy to pass up. Therefore, I invite you to read Lincoln's thoughts on the issue, and to contribut your own as well. Enjoy!

What rights do athletes and teams have to the statistics produced during a game?

By: Lincoln Cohoon

Millions of sports fans across the globe participate in fantasy sports each season. This growing business produces more than one billion dollars in revenues for the companies that sponsor and run the fantasy sports leagues. However, a recent debate has emerged over whether athletes, teams, or even the leagues have exclusive rights to the use of these statistics.

Recently, Yahoo, Inc. has filed suit against the Nation Football League Players Association (NFLPA) for access to player statistics. A June 3rd article from Yahoo.com, “Yahoo Sues NFL Players Association” by Steve Karnowski, details the dispute and the legal dilemma that surrounds it. Yahoo wants the courts to require the NFLPA to provide player statistics without having to pay the NFLPA royalties for this information. Yahoo claims the information is already public knowledge and therefore there is no need to renew the previous use of statistics agreement with the NFLPA that expired on March 1st. As the article states, this is not the first time that a major sports leagues’ players association has been involved in a lawsuit over player statistics. The courts have ruled against the players associations on two other occasions; in 2007 against the Major League Baseball’s Players Association and just this past April against the NFLPA in a suit with CBS.

Two issues are at stake with this suit, the first being whether this court will follow suit and rely on the 8th Circuit’s decision. Because this case is also being tried in the 8th Circuit, the same Circuit which brought down the ruling the previously mentioned MLB case, the court is bound by that decisions. Thus, unless the lawyers for the NFLPA can somehow distinguish this case from the MLB case (which I’m sure the NFLPA’s lawyers will attempt with a vengeance), the federal court is bound to follow the precedent set by the previous case. Since the facts, on their face, do not appear different enough to warrant a contrary ruling, it would appear that Yahoo is likely to at least win Round One.

The bigger question here revolves around what may happen on appeal. Regardless of who wins in the lower court this case, it seems to be destined to reach at least the Court of Appeals. From there, The Court of Appeals could reverse the previous decision set by the lower court (taking into considering whether the MLB case was followed and why), it could deem that this case presents a unique issue and rule differently (although generally the Court of Appeals will not do this unless the lower court committed a grave legal error in its ruling), or they could let the previous decision and stand and once again rule against the NFLPA .

The second issue of large concern is whether players and leagues have rights to their (own) statistics. The legal arguments likely to be set forth are that the information is public knowledge, and that a fantasy sports provider (Yahoo in this instance), simply compiles and generates for their users. This argument focuses on the notion that copyright protection does not protect facts; it only protects the expression of ideas. Player statistics are public information that anyone could collect by simply reading the paper or watching the game, but more importantly, player statistics are factual information – not creative expressions. Because of this, stats may not be eligible for copyright protection at all.

An aside to this may be that while facts themselves are not protectable, a unique arrangement of facts may be. For example, a book on the civil war, while relying historical facts, may present it in a unique way that renders the book (not the facts themselves) protectable. Building on this, it may benefit Yahoo! to argue that, not only are the stats themselves not copyrightable (and thus not subject to licensure), but the unique way in which Yahoo! arranges and presents them actually entitles Yahoo! to copyright protection over that presentation.

In my opinion, this issue is driven by the athletes trying to get a bigger piece of the pie – and a bad PR move on their part, as they are seemingly failing to consider the negative ramifications this could have on people’s desire to watch sports or follow athletes and their numbers. With the nasty PR blows that these leagues and athletes have recently taken (steroids in MLB, conduct issues in the NFL, concerns about violence in the NHL, rising ticket prices in all of the leagues) one would think that the leagues would smarten up and actually give something back to the fans. I understand the business side of the argument and the fact that there wouldn’t be fantasy sports if there weren’t athletes, but I really think that it is time for the athletes to realize that there really wouldn’t be professional sports if there are no fans to follow them.