• by Wendy Davis  @wendyndavis, September 11, 2008

Editor's Note: This story has been updated.

The National Football League is trying to strong-arm CBS in federal court about fantasy football.

The NFL this week filed a lawsuit in federal court in Miami seeking to shut down CBS Interactive's fantasy football program. The association alleges that CBS's program, available via CBSSports.com, violates the players' rights to control the use of their names.

That move comes one week after CBS attempted to preempt the lawsuit by bringing its own case against the NFL. In that action, filed in Minneapolis, CBS is seeking an order declaring that it can offer online fantasy football without paying the NFL a licensing fee.

The NFL argues that CBS is violating the players' rights by using their names and statistics for commercial purposes. "The good will and commercial value of the NFL Player names and performances creates the so-called 'fantasy' in this commercial football experience and enterprise," the NFL alleges in its lawsuit.

CBS offers both free and paid versions of fantasy football. The TV network paid the NFL a licensing fee for the ability to use players' names and statistics from the mid-1990s through February of this year, according to the court papers.

But the network didn't sign a new licensing agreement in light of a federal appellate decision issued last October in a fantasy baseball case.

In that case, the 8th Circuit Court of Appeals in St. Louis ruled that the company C.B.C. Distribution and Marketing, which offers fantasy sports games on its Web site, has a First Amendment right to use baseball players' names and publicly available information about them. The U.S. Supreme Court in June declined to consider an appeal Major League Baseball's appeal.

Given that holding, it's not surprising that CBS would balk at the prospect of continuing to pay licensing fees, according to Rick Kurnit, a lawyer with Frankfurt Kurnit Klein & Selz and an expert in legal issues surrounding celebrities' right to control their images.

"Obviously, the 8th circuit decision has emboldened CBS," Kurnit said.

But there are differences between the earlier case and this one. The prior case concerned baseball, not football. While that might seem like an artificial distinction, the 8th Circuit made a point of calling baseball the national pastime in its opinion.

Kurnit added that the issues aren't clear-cut here. On one hand, he said, CBS has a strong argument that it has a First Amendment right to mention players' names for entertainment purposes, just as a screenwriter can write a movie script in which characters mention the names of celebrities.

But, he said, the professional football players also can claim that the game is too closely tied to their real-life activities on the football field. "The best argument for the players is that they are a major source of content, and that making money off of their performances is akin to the appropriation of the performances."