Do sports leagues really own their scores? Say it ain’t so, commissioners!

When I was a kid playing Little League baseball, I was a devoted follower of the televised Big League game of the week, which in Montreal came to our TV antenna from WCBS Burlington, Vermont. At the time, CBS owned the New York Yankees so we got Yankee games, which turned me into a Yankee fan. That has had all sorts of psycho-cultural implications, the Yankees being classic over-dogs—though at that time they were actually pretty bad. In hockey, I naturally supported my hometown team, the Montreal Canadiens, historically another over-dog (though not so much lately).

Part of broadcast ritual in baseball occurs around the seventh inning, when the announcer reads out the copyright warning: “Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited.” As I kid I wondered how “express written consent” was different from “written consent.” I guess I was on my way to being an editor, a job I’ve done a few times in my life.

All this came to mind this week after the United States Supreme Court’s 6-3 decision overturning federal disallowance of state laws authorizing gambling on sports events. Perhaps not surprisingly, what’s expected to be a flood of new laws allowing sports gambling in the states is expected to spark a veritable scrum, a bench-clearing brawl as it were, an all-out blitz, a full-court press—choose your favourite sports metaphor indicating elbows-flying intensity—as governments and gambling companies try to secure their piece of all the new betting action.

As reported in the Wall Street Journal, NBA commissioner Adam Silver used an interesting phrase to justify his league getting a share of any new gambling revenues: “We are the producers of this intellectual property. The NBA will spend $7.5 billion this year creating this product. We should be compensated in some way for the use of our property.”

It had never occurred to me that sports scores, which are the most common fodder for sports betting, were actually intellectual property. Jock property, maybe. But intellectual property? Everyone knows—or almost everyone—that two years ago the New England Patriots came back from down 28 to 3 in the third quarter of the Super Bowl (“Super Bowl LI,” i.e. 51) to beat the Atlanta Falcons 34-28 in the only overtime game in Super Bowl history.

But is that result public domain, part of sports history, or the property of the National Football League? In talking about that score—in just having mentioned it—are we violating an NFL property right? Do we have to put little copyright signs (©) beside every mention of it and beside all other sports scores, too?

Information is a classic example of a “public good.” Your knowing the Super Bowl score doesn’t prevent me from knowing it, too. We can both “consume” it at the same time. By contrast, with “private goods” what you consume I can’t consume: we can’t both eat all of the same hamburger. Economists often argue that because of this “non-rivalness” of consumption, and the difficulty of keeping people out, the market will under-supply public goods. If everyone can consume a good without paying for it, how can anyone make money supplying it? Who would be foolish enough to pay?

It was a problem in the 19th century for Charles Dickens, whose works were widely reprinted without his authorization. He had to monetize his fame by going on lecture tours for which he or his agents could sell tickets. It’s a problem in the music business today. Rock stars used to make most of their money selling records. Now, with content so easy to steal, they have to sell concert tickets and t-shirts to cash in.

But is the fact that everyone in the world can know the result of a sports match without paying for it really causing sports leagues to be undersupplied?

The NBA isn’t spending $7.5 billion a year out of the goodness of its heart. Some of its franchises may not be doing so well but, overall, the league is likely making much more than $7.5 billion in return. It sells tickets to games. It sells broadcast rights, which are not always easy to police but evidently are enforceable enough that TV networks are willing to pay really big bucks for them. It makes money selling team shirts and shorts and sweats and almost every other kind of branded item imaginable. If it were able to sell its scores and in some way make them inaccessible to people who didn’t pay, could it make even more money? Sure. Would it be a bigger league? Possibly. But it seems to be doing at least OK as is.

The leagues say that with betting legalized they’ll have to spend more money assuring the integrity of their various games. Really? By all estimates, an awful lot of betting has been going on for a long time, whether legally in Nevada, which had an exemption under the federal law the Supreme Court just overturned, or illegally. In principle, at least, fixing games has probably paid for a long time. Most leagues already have a big stake in convincing fans competition is on the level—and have had since the Chicago Black Sox scandal of 1919 (“Say it ain’t so, Joe!”), which F. Scott Fitzgerald immortalized with a reference in The Great Gatsby. Bringing gambling aboveground may change the stakes slightly at the margin but I doubt the effect will be that big.

The obvious danger in various stakeholder attempts to get a piece of the revenue action—whether in the legalized marijuana market in Canada or the legalized betting market in the U.S.—is that they’ll kill any chance of profitability in the legal markets and simply drive everything back underground as a result.

Anyone want odds on that?