• by Wendy Davis  @wendyndavis, June 4, 2009

Hoping that the best defense is a good offense, Yahoo has sued the NFL Players Association.

The Web company is asking for an order okaying the use of real players' statistics in fantasy football. Yahoo argues that it has a First Amendment right to use publicly available information about athletes. The NFL Players Association takes the position that harnessing information about the sports figures without their permission violates their right to control the commercial use of their image.

But several courts have recently held that companies operating fantasy sports leagues have a free speech right to use publicly available information about athletes. Most recently, in April, U.S. Federal District Court judge Ann Montgomery in Minnesota ruled in favor of CBS Interactive in a similar dispute.

In that case, CBS used names, player profiles, statistics, injury reports and other information about athletes in the fantasy games. "The package of player information ... comes within the ambit of the First Amendment," Montgomery wrote.

The players association is appealing that ruling to the 8th Circuit Court of Appeals.

But that appellate court has already ruled against another sports organization, the Major League Baseball Players Association, on the same point. Two years ago, the court ruled that C.B.C. Distribution and Marketing, which offers fantasy sports games online, had a First Amendment right to use baseball players' names and statistics without a license.

"The information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a First Amendment right to use information that is available to everyone," the court wrote in that case. Last year, the U.S. Supreme Court refused to consider an appeal by the baseball players' association.

Yahoo previously paid fees to the NFL Players Inc., but the last of its licensing agreements expired in March, according to the lawsuit.