PHILADELPHIA — Not far from where Greg Luzinski stood signing autographs for patrons of his Citizens Bank Park eatery, Rick McElhattan, of Northeast Philadelphia, totaled up the cost of attending the doubleheader the other day between the Phillies and Dodgers. There with his wife and two boys, ages six and eight, McElhattan had not even found his seats yet, but was considerably lighter in the wallet.
Parking: $10.
Two baseball caps for the boys at $22 a pop: $44.
Food: $40.
"And this doesn't even count the price of our seats," says McElhattan, who is 42 and on disability. "So at $22 apiece, that comes to $88. So it adds up."
Surely you know by now that supporting a professional sports team is an expensive hobby. But it could well become even more expensive for some of you, depending on the outcome of an interesting lawsuit this summer that has a St. Louis-based fantasy-league operator at odds with Major League Baseball in part over who owns the statistics that are generated by the players.
(Question: Can I get a price check on that error in the fourth?)
Baseball is asserting that the unlicensed use of statistics violates the "right to publicity," which is to say: There is value in that home run Bobby Abreu hit on Sunday beyond the fact that he enabled the Phillies to beat the Dodgers in Game 1 of the twinbill.
So what do the fans think of that?
"My initial reaction is shock," McElhattan says. "What are they (baseball) going to do next? Charge us for the air we breathe at Citizens Bank Park?"
None of this should surprise McElhattan, especially given the era in which we live. Sports leagues are surpassed only by the "Soprano" clan in their ability to squeeze a dollar and cent out of their operations. Heck, baseball even toyed with the idea of placing advertisements on the bases a few years ago, only to back down in the face of public outcry. The NFL has just banned local television stations from shooting from the sidelines in an effort to protect its broadcast interests, which some critics have claimed could lead to censorship of coverage. Even the LPGA back in February placed restrictions on photographs taken by news organizations at its events in an effort to curb the use of the images of its players; those were rescinded in mid-March.
Is this what sports has come to?
"Sports leagues are becoming increasingly concerned with, 'How can we exclusively control the revenues that flow from our game?' " says Rudy Telscher Jr., the attorney for CBC Distribution and Marketing, the plaintiff in the case. "But the question is: Has it gone too far? I understand that ownership should get a fair return on their events, and the players should get their share of revenues, but there is a point you come to: Here is what they should be paid, and this is what belongs to the public."
But an MLB.com spokesman says the case is far more complicated than the usage of raw statistics, arguing that CBC has capitalized on the usage of the "player stats used in conjunction with their personas" for one purpose: so CBC itself can show a profit. "Regardless of what CBC and their attorney would have you think, this is not over the ownership of statistics," says Jim Gallagher, the spokesman. He added that because CBC is driven by a "purely commercial purpose . . . and if you are going to do that, you have to have a license, the same way a company that sells a Derek Jeter jersey has to have a license."
But you can get statistics for free in the copy of the newspaper you are now holding — and when last we checked they were still commercial entities. No one from baseball has asked us to pay for the privilege of using box scores and such, and Gallagher says no one should ever expect that to happen, chiefly because of the distinction that exists between a company such as CBC and a newspaper. "A company like CBC is not merely reporting or providing stats like a newspaper does. They are running a pay-to-play commercial enterprise for cash prizes, and in doing so are reaping a profit." But Telscher argues that the statistics that newspapers run each day are part of the historical record and as such are in the public domain.
"Odd, but it was just a few years ago (1996) some former players sued baseball from using their likenesses in commercials promoting the sport," Telscher says. "Baseball prevailed in that case when a California court ruled that there was not a right to publicity, and even if it was it was trumped by First Amendment issues. Now baseball finds itself on the other side of the fence in that argument: That historical record is not part of the public domain."
Fantasy leagues became popular in baseball 25 years ago when writer Dan Okrent got together with a few of his chums and formed "The Rotisserie Baseball League." Leagues since have sprouted up across America, in a number of other sports as well, and have become a way for fans to connect to sports on a personal level. CBC has been in operation for 10 years and had previously paid a licensing fee to the Major League Baseball Players Association that came to between seven and nine percent of its yearly gross, in effect acknowledging that even in the public domain statistics warranted a premium. Telscher says that it only did so to solidify its partnerships with The Sporting News and later USA Today, news organizations that he says had no appetite for running afoul of the MLBPA.
Things changed in January 2005. MLB Advance Media wrote a check to the MLBPA for $50 million in order to become the official licensor of fantasy games. Gallagher says that MLB.com offered CBC a one-year deal, which it declined. Facing a certain lawsuit if it continued to operate without a license, CBC commenced a "declaratory judgment" whereby the target of a potential lawsuit strikes preemptively in order to perhaps get a more favorable venue.
St. Louis attorney J. Bennett Clark understands why baseball is defending itself with such vigor. "What they have is valuable and they want to control it," he says. "People will still be able to play in fantasy leagues even if CBC loses, but they will then have to do it on the terms that baseball sets." Telscher foresees soaring prices for fantasy players in the event that happens. While the MLBPA last year licensed 18 operators, MLB.com has trimmed that number to five, including goliaths such as Yahoo, ESPN.com and CBS SportsLine. Sources say they paid $2 million for their licenses, fees that could well end up costing an increasing premium.
"Here is what I think is going to happen," says Telscher. "I think one of the consequences that you are going to have once there is no competition (is that the price will be set by) what the consumer is willing to pay. Baseball will continue to jack up the price in a monopolistic way to the point where they are going to begin losing some people. But that will be fine with them as long as they keep 90 percent of their subscribers at a higher price. The ones who will be priced out are the kids."
Gallagher says just the opposite is true. "Our goal is to get more and more people to play," Gallagher says. "And we have no plans of increasing our subscriber fees."
So how does this imbroglio figure to play out?
Clark wonders if baseball is just shooting itself in the foot. "You get the feeling that this is one of those things that seemed like a sound idea . . . but now you just know there have been meetings where (baseball) people have sat around and asked themselves, 'Guys, is this the law of unintended consequences at work?' " Clark says that the unintended consequences here could be that in their grab for even more dollars, baseball will undermine the very vehicle that has provided itself fans with a sense of intimacy to the sport.
"Somehow you get the feeling that if there was a stone, they would have someone see if there were worms under it to sell," Clark says. "I would say to baseball, 'Slow down, boys, because if you alienate the very people who support you, the only thing you will end up with out of this is a black eye.' "
Some fans at Citizens Bank Park on Sunday appeared eager to help with that. Jeff Grether, of Emmaus, has been playing fantasy baseball for years and looked wounded when told him that baseball was in effect charging him for statistics. "How can they do that?" says Grether, 50. "We do this for fun. Sure, there is money involved, but it keeps us following baseball. We follow the teams we pick from day to day."
Sitting across from him, Jason Stengal, his friend from Allentown, adds: "And you can be sure the prices are going to go up."
John Howey, 31, of Gloucester City, N.J., scoffs that it was "just another way to gouge the fans. What they fail to realize is that people are usually fans of all sports," he says. "And all of it adds up."
Richard Cory echoes that.
"I think it is outrageous," says Cory, 60, of Valley Forge. "For baseball to even think of charging people for statistics seems petty to me. Look at what their profits are even without this. What more do they want from us?"
He pauses and with a chuckle asks, "Is this a joke?"