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The end of the World Series marks the conclusion of yet another glorious baseball season. But for true baseball fans, the end of the post-season marks the beginning of a long winter of feigned enthusiasm for Monday Night Football and half-hearted cheers for basketball upsets. November is the first step in the interminable march to spring training, a period relieved only by the latest gossip about off-season trades and injuries and the periodic broadcast of Major League II on cable. But baseball die-hards need not despair. The crack of the bat may be silenced until spring, but baseball season never ends in the federal courts. The federal judiciary, after all, is led by Chief Justice John G. Roberts Jr., who during his confirmation hearings last year famously described his role as that of an umpire: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” What for the chief justice was a metaphor about the role of judges reveals a deeper truth: Baseball permeates the law. As in past years, baseball in 2006 played a role in all manner of federal cases. Sometimes employees took their passion for the game too far. See Swearingen v. A2D Techs., No. Civ.A.H-04-0550, 2006 WL 623576, at 3 (S.D. Texas March 29, 2006) (holding that an employer did not discriminate against an employee when it fired him in part because of his “penchant for watching and listening to baseball games during work”). Sometimes baseball served as an inept alibi. See U.S. v. Muhammad, No. 05-4923-CR, 2006 WL 2573441 (2d Cir. Sept. 7, 2006) (affirming denial of motion to suppress on the ground that police officers had good reason to disbelieve a suspect who claimed his gym bag contained a baseball bat and not a gun, in part because of “the absence of baseball fields in the vicinity”). Baseball even had a dispositive outcome on a prevailing party’s effort to recover hotel expenses incurred in Chicago last October. See Telular Corp. v. Mentor Graphics Corp., No. 01 C 431, 2006 WL 1722375, at 9 (N.D. Ill. June 16, 2006) (holding that the prevailing party could not collect more than the daily per-diem lodging rate even though less expensive hotels were booked because of the 2005 World Series because “[u]nfortunately . . . , the statute does not take into account the extraordinary nature of the World Series in Chicago”). Once again, the national pastime worked its way into the life of the judiciary. And this year, the lineup of baseball cases that remain on deck presents unique and unusually important issues. These cases should be of special interest to fans but also could have ramifications far beyond the world of sport. Fantasy litigation The 8th U.S. Circuit Court of Appeals is the latest venue for the showdown between Major League Baseball and fantasy baseball operators over the rights to baseball statistics. At the heart of the case is whether players’ performance statistics-hits, runs, runs batted in, errors and more-are historical facts or protected intellectual property. Major League Baseball Advanced Media L.P. (MLBAM)-the Internet and media company funded by baseball’s owners-sued CBC Distribution and Marketing Inc., a company known as CDM Fantasy Sports, which offers fantasy products, including fantasy baseball games, over the Internet. Baseball has licensed the right to use player photographs and statistics to a few major providers of fantasy sports, such as ESPN Inc., Yahoo! Inc. and CBS Sportsline. For many years, CDM had paid the baseball players association for a license, but in 2005 the players granted exclusive rights to MLBAM, which then denied CDM a renewal of its agreement. CDM sought a declaratory ruling that its unlicensed use of players’ names and playing records in its products was lawful. In August, a federal magistrate judge ruled in favor of CDM. The court ruled that CDM’s use of players’ names and statistics did not violate the players’ right of publicity because the players’ names were used only in association with their statistics and did not imply an endorsement or sponsorship or give CDM a commercial advantage. CBC Distribution and Marketing Inc. v. Major League Baseball Advanced Media L.P., No. 4:05CV00252MLM, 2006 WL 2263993, at 6 (E.D. Mo. Aug. 8, 2006). The court also ruled that CDM’s First Amendment rights outweighed any of the players’ right of publicity. The court rejected one of CDM’s alternative arguments-that federal copyright law pre-empted the players’ state law right of publicity claim. It reasoned that statistics and the names associated with them are in the public domain because baseball statistics are not actually copyrightable; they are facts accessible in any newspaper box score and to “any person attending a baseball game” and thus “do not involve the sine qua non of copyright-originality.” Id. at 20. Fantasy games, the court observed, rely only on facts, “akin to the names, towns and telephone numbers in a phone book, to census data, and to news of the day.” Id. Major League Baseball has appealed to the 8th Circuit, which likely will hear arguments sometime in 2007. This blockbuster case could dramatically affect fans’ ability to participate in fantasy sports leagues, which, according to the Fantasy Sports Trade Association, are a $1 billion business in which more than 15 million Americans participate. The court’s resolution of the copyright pre-emption issue also could be a central issue on appeal, making this a significant case in the wave of recent decisions that attempt to balance the competing interests of promoting the free flow and exchange of ideas and historical factual information with granting protection through copyright law to original works and compilations of facts. BALCO/reporter’s privilege Barry Bonds seems to have produced as many news stories as he has home runs. The latest twist springs from a case involving two San Francisco Chronicle reporters who published excerpts of grand jury testimony from the investigation into whether the Bay Area Laboratory Co-Operative (BALCO) supplied banned substances to athletes. The reporters, Mark Fainaru-Wada and Lance Williams, wrote articles in 2004 and a best-selling book, Game of Shadows, about the investigation in which they quoted grand jury testimony from Bonds and New York Yankees stars Jason Giambi and Gary Sheffield, among other athletes. The book helped prompt a congressional investigation into steroid use in baseball, along with new testing policies implemented by the league. Late last month, a federal judge held the reporters in contempt for refusing to identify their source for that grand jury testimony in response to a subpoena from federal prosecutors. In re Grand Jury Subpoenas, No. CR 06-90225, 2006 WL 2734275 (N.D. Calif. Sept. 25, 2006). The court stayed its order pending the reporters’ appeal to the 9th Circuit. This case presents the latest in a string of federal court rulings concerning the circumstances in which reporters must divulge their sources in criminal investigations. In 2005, the D.C. Circuit rejected an appeal from New York Times reporter Judith Miller, who was jailed when she refused to identify a source as part of the government’s investigation into press reports concerning CIA employee Valerie Plame. In re Grand Jury Subpoena, 397 F.3d 964 (D.C. Cir. 2005). Forty-nine states and the District of Columbia enforce some form of reporter’s shield law, but federal courts are sharply divided on the question of a reporter’s privilege. Some circuit courts afford varying levels of protection, while others offer no shield at all. Congress has considered several proposals for a federal shield statute, including a bill heard just last month by the Senate Judiciary Committee. This case could give added momentum to that debate, break new ground on the reporter’s privilege common law in the 9th Circuit, and perhaps provide the Supreme Court a chance to consider whether to harmonize the various federal reporter’s shield standards. Fan with attitude Finally, in a decision likely to renew the debate about what constitutes appropriate fan behavior, the 6th Circuit recently weighed in on behalf of a heckling fan who brought a federal civil rights action against an off-duty police officer who thought the heckling had gone too far. The fan, Jeffrey Swiecicki, attended a Cleveland Indians game at Cleveland’s Jacobs Field on Sept. 21, 2001, against the Toronto Blue Jays. Swiecicki “heckled members of both teams, particularly those playing the left field position, and consumed two beers,” according to court records. Swiecicki v. Delgado, No. 05-40362006, WL 2639793, at 1 (6th Cir. Sept. 15, 2006). His heckling caught the attention of Jose Delgado, a security guard and off-duty police officer, who observed Swiecicki yelling vulgarities at then-Indian left fielder Russell Branyan, such as, “Branyan, you suck!” and “Branyan, you have a fat ass!” Id. at 2. Delgado arrested Swiecicki for disorderly conduct and resisting arrest, but an Ohio state court reversed his convictions based on insufficient evidence. Swiecicki then filed suit under 42 U.S.C. 1983, alleging a violation of his speech rights, arrest without probable cause and excessive force. As the 6th Circuit noted, “[f]or a baseball fan to make a ‘federal case’ out of being ejected from a game may well strike many as a colossal waste of judicial resources.” Id. at 15. Nevertheless, it reversed a district court’s grant of summary judgment to the officer, holding that Delgado acted under color of state law when he placed Swiecicki under arrest and that genuine issues of material fact precluded summary judgment on the basis of qualified immunity. Depending on one’s point of view, the most comforting or most disturbing aspect of the court’s holding for baseball fans was the determination that, even though Swiecicki was “leading a crowd of hecklers,” the manner of his speech was not necessarily inappropriate or offensive, because “Jacobs Field . . . encourages fans to cheer and make noise, meaning that loud or even rowdy behavior was commonplace at games.” Id. at 10 The court also noted that the First Amendment likely protected Swiecicki’s speech, as there was no evidence that his heckling “rose to the level of fighting words.” Id. at 13. In dissent, Judge Jeffrey Sutton observed that “[r]arely does an inning in a baseball game go by . . . without some fan expressing frustration with his team,” but he noted that the Jacobs Field ticket policy allowed a fan to be removed for “antisocial conduct offensive to those around him.” Id. at 17. According to Sutton, “it seems to diminish rather than uplift the First Amendment to apply it in this setting.” Id. at 16. The 6th Circuit’s decision will renew the debate about how far zealous fans should go in cheering their team and heckling the visiting club. But, however the case turns out, it appears that Branyan had the last laugh. He scored twice, and homered in the seventh, leading the Indians over the Blue Jays, 11-7. Action in the federal courts in these and other cases may indeed help baseball fans mark time until spring training. But the cases are much more significant than that. The importance of this year’s baseball docket remind us that what the Supreme Court observed more than 30 years ago remains true today: “Baseball’s status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody’s business.” Flood v. Kuhn, 407 U.S. 258, 260-61 (quotation omitted).

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