This isn't as straightforward as people think
I made a pretty lengthy post on this topic at David Pinto's blog (baseballmusings.com), so for simplicity's sake, I'll copy and paste portions of that here:
I'm a law student in Boston. I discussed this case with my Intellectual Property professor, and was surprised to hear that he believes MLB (along with their strangebedfellow in this case, the MLBPA) is going to win.
While I'm no fan of the theory of "right to publicity," it is widely recognized by US Courts. Example: it would probably be illegal for me to sell T shirts that said "Tiger Woods" with a bullet point list of his championships. The rationale is that the athlete has created his personal profile through hard work, and that he should be rewarded for that hard work by having monopoly power over merchandise containing his personal profile. (Again, I don't like this holding in the law... but it's the law).
If MLB/MLBPA loses this case, then I would imagine Strat-o-Matic could stop paying royalties to the player's association. Think about it: Strat doesn't use player photos (that I know of), it merely uses "statistical profiles" associated with a player's name. Strat has been paying for the right to do this for years. The same is true of some "text-baseed" video games, where no player images or likenesses appear in the game.
MLB/MLBPA are not arguing that they own the statistics. They are arguing that each player has the sole right to exploit things that are associated with his person. But the "players" have assigned all of their rights to MLBPA, and MLBPA temporarily assigned all "fantasy" rights to MLB. So the MLB is arguing that the commissioner's office (for now) has the right to pick and choose who gets a fantasy license and how much it should cost.
Quick legal background for the lawyers: MLB was CBC's target in the declaratory action. MLB then counterclaimed. MLBPA moved to join as an intervenor party (which was allowed).
In short, I would love for MLB to lose this case, because it would keep fantasy games cheaper. It would also likely reduce barriers to entry in the video game market. If MLB wins (and prevails in subsequent appeals), it will have a legal mandate to become a classic monopolist in the fantasy market - decreasing the supply of games, yet raising prices.
But unfortunately, this is a close call.
Prediction: regardless of whoever wins at the district court level, the other party will appeal, CBC will run out of money, the case will settle, and will be vacated.
[later - someone asked how my professor could possibly think that MLB would win, in light of the "Motorola" case]
The NBA/Motorola case was about control of "real time" updates, not about a player's right to publicity.
IIRC, the NBA's theory was that it had a property right to the descriptions and accounts of the game. The NBA tried to make the claim that the Motorola updates were analagous to some guy sitting in the stands and broadcasting the games, without a license. (There actually was a case years ago where some dude used a telescope to look into Forbes Field in Pittsburgh and made his own "pirate" Pirate broacasts). The court didn't buy the analogy. It held that these updates were "news" items, and that people wouldn't choose these real-time updates as a surrogate for watching the game.
The Motorola case would be more analogous to this case if the PLAYERS had sued.
There is another case called Morris v. PGA tour, also about real-time updates. The tour could not stop "hole reporters" from providing real-time updates via pagers.
Also: The Motorola case was a 2nd circuit decision. It is not binding within the 8th Circuit where the CBC case will be heard (in USDC in St. Louis). But it's true that most courts have followed the Motorola decision.
I agree with those of you who think that MLB is splitting hairs. But, I reiterate that Strat-o-Matic has been paying licensing fees for years for the right to use a player's statistical profile and stick his name next to it. PC simulation games like "Out of the Park" and "Baseball Mogul" use false names, because they fear lawsuits. If MLB loses, there will be a sea change in these markets (for the better, IMO).
How, then, are those people of the future—who are taking steroids every day—going to look back on baseball players who used steroids? They're going to look back on them as pioneers. They're going to look back at it and say "So what?" - Bill James, Cooperstown and the 'Roids