THE BEST DEFENSE IS A GOOD OFFENSE: STUDENT-ATHLETE AMATEURISM SHOULD NOT BECOME A FANTASY Jennifer A. Mueller I. INTRODUCTION Fantasy sports leagues are widespread and popular, and have grown into a multi-billion dollar industry.1 Many companies offer different fantasy sports options, and fantasy sports leagues are available for professional football, basketball, and baseball, as well as golf, hockey, and racing, among other sports.2 The new ―players‖ in fantasy sports are college fantasy sports leagues. While college fantasy football leagues have been available for a number of years,3 until the 2008–09 season they differed significantly from traditional fantasy sports leagues in an important way.4 In the past, college fantasy J.D., University of Illinois College of Law, 2010; M.S.Ed., Educational Policy, University of Pennsylvania Graduate School of Education, 2005; B.S., Public Affairs, Indiana University, 2003. 1. There are an estimated 27 million Americans playing fantasy sports. This translates to annual revenue between $800 million and $1 billion, according to the Fantasy Sports Trade Association. Jason Ankeny, The Reality of Fantasy Sports, ENTREPRENEUR MAGAZINE, Sept. 2009, available at http://www.entrepreneur.com/magazine/entrepreneur/2009/september/203140.html. The fantasy sports industry generates total market impact of $4.48 billion; consumers spend about $800 million directly on fantasy sports products, and an additional $3 billion on media products related to the hobby. Press Release, Fantasy Sports Trade Association, Fantasy Sports Industry Grows to a $800 Million Industry (July 10, 2008), http://www.prweb.com/releases/2008/07/prweb1084994.htm. As further evidence of fantasy sports popularity and economic impact, a new insurance company will now allow fantasy football league gamers to take out an injury insurance policy on their fantasy football season. The insurance company is Fantasy Sports Insurance, Inc. ( www.fantasysportsinsurance.com). Brian Haughey, Fantasy Football Insurance Guarantees Injury Won’t Plague Your NFL Season, Aug. 25, 2009, http://www.associatedcontent.com/article/ 2101227/fantasy_football_insurance_guarantees.html?cat=14. 2. Joshua Chaffin, All to Play For, FINANCIAL TIMES, Nov. 9, 2007, available at http://www.ft.com/cms/s/0/1cc2ad14-96bd-11dc-b2da-0000779fd2ac.html. Fantasy sports companies even tried fantasy bass fishing, but that effort was short-lived for some companies. Id. ESPN, though, still provides fantasy fishing. ESPN Fantasy Fishing, http://games.espn.go.com/bass/frontpage (last visited Oct. 6, 2009). 3. CBS Sportline.com (now CBSSports.com) created a college fantasy football league that started in the 2005 fall college football season. College student-athletes were categorized by position and school, e.g., ―Team QB, Michigan,‖ and statistics reflected any college student-athlete who played the quarterback position at Michigan. It was offered free of charge to gamers who participated in the league. Press Release, CBS Sportsline.com, CBS SportsLine.com Unveils College Fantasy Football (Aug. 2, 2005), http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/08-02-2005/ 0004080543&EDATE=. 4. Posting of Myles Brand to NCAA Double-A Zone, Fantasy Leagues May be Less Than They Seem, http://www.doubleazone.com (Sept. 9, 2008, 15:41 EST) [hereinafter Brand, Fantasy Leagues]. 527 528 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2009 football leagues did not use college student-athletes‘ names, but instead referred to players by school and position.5 For example, statistics were listed for ―Florida quarterback.‖6 Apparently, this lack of player personalization left something to be desired, as college fantasy football leagues were not as popular as the professional fantasy leagues, which use the names and statistics of the professional athletes.7 As a result, in the fall 2008 football season, college fantasy sports league providers started using the names of and posting statistics for individual college student-athletes.8 Now, the ―Florida quarterback‖ is listed by name (e.g., Tim Tebow) in college fantasy football leagues along with his individual statistics.9 The Eighth Circuit Court of Appeals, in a case between Major League Baseball Advanced Media10 and fantasy sports league provider CDM Fantasy Sports, recently ruled that Major League Baseball (―MLB‖) players‘ names and statistics are not owned by the individual players or the MLB, but instead are in the public domain.11 This decision gives rise to the question of whether the ruling also applies to amateur athletes and, in particular, college student- athletes who are not compensated for their participation and cannot earn money from endorsements.12 Fantasy sports league providers say yes.13 The NCAA says no.14 Nevertheless, as of the Fall 2008 football season, college fantasy sports leagues now use the names and statistics of current college student-athletes.15 It is this intersection of amateurism and the recent actions taken by fantasy sports league providers that is the focus of this Note. Part II discusses the history and evolution of fantasy sports. It explains the origin and development of fantasy leagues for professional sports, and their expansion to college sports. Part II also presents background information on the National Collegiate Athletic Association (―NCAA‖) Principle of 5. Id. 6. Id.; Nando Di Fino, College Football Fantasy Game to Name Names, THE WALL STREET JOURNAL ONLINE, July 31, 2008, http://online.wsj.com/public/article_print/ SB121733679819593215.html. 7. Id. (―A fantasy college game has never been widely accepted or attempted before because of a reluctance to utilize anything but broad signifiers in identifying college athletes. But [college fantasy sports leagues] never caught on with users, due mainly to the disconnect between the robotic names and the fantasy audience . .‖). 8. Brand, Fantasy Leagues, supra note 4; Di Fino, supra note 6. 9. Di Fino, supra note 6. The format of the CBSSports.com college fantasy football league differs from traditional professional fantasy leagues. For example, all college student-athletes on the 120 teams in the NCAA‘s top football classification are eligible to be drafted, but gamers also have the option to narrow the pool and draft from as few as two conferences or to open the pool and draft from up to all eleven conferences plus unaffiliated independent teams (e.g., Notre Dame). Id. 10. Major League Baseball Advanced Media is the Internet and interactive branch of Major League Baseball. The Official Site of Major League Baseball, www.mlb.com (last visited Oct. 6, 2009). 11. C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). 12. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, 2009-10 NCAA DIVISION I MANUAL, at 62-66, 74 (Bylaws, Articles 12.1.2, 12.5.2) [hereinafter NCAA MANUAL]. See also NCAA MANUAL, at 61 (Bylaws, Articles 12.01.4) (explaining permissible grant-in-aid). See infra Part III.B.3. (explaining that the only type of compensation a college student-athlete can receive is grant-in-aid). 13. William K. Kirwan & R. Gerald Turner, Tackling College Football Fantasy Leagues, LOS ANGELES TIMES, Aug. 30, 2008, available at www.latimes.com/news/opinion/sunday/commentary/la-oe-kirwan30- 2008aug30,0,7890950.story. 14. Brand, Fantasy Leagues, supra note 4. 15. Id. No. 2] THE BEST DEFENSE IS A GOOD OFFENSE 529 Amateurism and briefly discusses the current issues surrounding amateurism related to fantasy sports leagues. Lastly, Part II summarizes C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, L.P.16 and examines what the Eighth Circuit‘s holding means for fantasy sports leagues and, in particular, for college fantasy sports leagues. Part III of this Note discusses whether the ruling in C.B.C. Distribution applies to college student-athletes, and the options available to the NCAA, colleges/universities, and college student-athletes. Part IV presents ways for the NCAA, colleges/universities, and college student-athletes to work toward preserving the amateur status of college student-athletes. Finally, Part V offers concluding remarks regarding amateurism and college fantasy sports leagues. II. BACKGROUND A. Fantasy Sports Leagues and the Impact of Technology A fantasy sports league is a game in which participants (―gamers‖) select actual athletes either by drafting or by trading them to create teams that score points based on the actual performance of those athletes during their playing season.17 Today, fantasy sports leagues are run through web sites, some of which offer free participation and others charge a nominal fee to join a fantasy league.18 1. Brief History and Evolution The first two fantasy sports leagues were for professional football and professional baseball. The first fantasy football league was formed in the early 1960s in a New York City hotel room by Oakland Raiders part-owner Bill Winkenback, as well as Oakland Tribune staff members Scotty Sterling and George Ross.19 They called the league The Greater Oakland Professional Pigskin Prognosticator‘s League.20 A decade later fantasy football was still a little-known hobby, with the center of its activity found in a sports bar in Oakland, California.21 It was not until the early 1990s that fantasy football 16. 505 F.3d. at 818. 17. Richard T. Karcher, The Use of Players’ Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, 111 PENN ST. L. REV. 557, 561 (2007). 18. Id. at 562. Web sites that offer free participation in fantasy leagues do so to attract as many players as possible to increase advertising revenue. Id. CBSSports.com does not charge for participation in its college fantasy sports league. Press Release, NCAA, NCAA Works with CBS on Fantasy Sport Issue (July 29, 2008), http://www.ncaa.org/wps/ncaa?ContentID=34298. 19. Stephen Dorman, The Fantasy Football Phenomenon, THE ACORN, Aug. 3, 2006, http://www.theacorn.com/news/2006/0803/Sports/076.html; Jerry Magee, It’s No Fantasy—NFL Puts Its Stamp on Gambling, SAN DIEGO UNION TRIBUNE, Aug.