dissenting.
I agree with the court’s discussion of the right of publicity in Missouri and the application of the First Amendment in this context. I would resolve the contractual issues differently, however, and I therefore respectfully dissent.
Advanced Media and the Major League Baseball Players Association (“MLBPA”) contend that CBC has violated two provisions of the applicable License Agreement as set forth in the majority opinion — the “no-challenge” provision and the “no-use” provision. CBC does not really dispute that it violated the restrictions, but it contends that the contractual provisions are unenforceable. I disagree with the court’s conclusion, sua sponte, that the provisions are unenforceable because MLBPA breached a warranty set forth in section 8(a) of the agreement.
Section 8(a) appears under a heading “Ownership of Rights.” It provides as follows: “It is understood and agreed that MLBPA is the sole and exclusive holder of all right, title and interest in and to the Rights and/or Trademarks for the duration of this Agreement.” Given the court’s resolution of issues concerning the right of publicity and the First Amendment, section 8(a) wins the day for CBC only if it is a warranty by MLBPA that CBC does not have rights under the First Amendment to use the players’ names and statistics in its fantasy baseball games.
Assuming that section 8(a) does address CBC’s constitutional rights (as opposed merely to the players’ state-law rights of publicity, which are accurately represented), and assuming that one party’s prediction about the constitutional rights of another party is the sort of “fact” that can be warranted under New York law, section 8(a) does not purport to make such a warranty. The provision states that the parties “agree” that MLPBA is the sole and exclusive holder of all right, title and interest in and to the Rights. CBC surely can “agree,” as a matter of good business judgment, to bargain away any uncertain First Amendment rights that it may have in exchange for the certainty of what it considers to be an advantageous contractual arrangement. See Paragould Cablevision v. City of Paragould, 930 F.2d 1310, 1315 (8th Cir.1991). That CBC later decided it did not need a license, and that it preferred instead to litigate the point, does not relieve the company of its contractual obligation. See Heath v. A.B. Dick Co., 253 F.2d 30, 34-35 (7th Cir.1958).
I also do not believe the district court’s grant of summary judgment invalidating the no-use and no-contest provisions can be sustained on the grounds actually raised by CBC. I agree with the court that MLBPA has not breached the warranty set forth in section 1(b) of the agreement. And I would not adopt the district court’s conclusion that the Supreme Court’s decision in Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), should be applied to declare the no-use and no-contest provisions unenforceable as against public policy. Lear held that state contract law establishing the doctrine of licensee estoppel in a patent case was preempted where its enforcement would significantly frustrate “overriding federal policies” embodied in the federal patent laws. The Lear approach to preemption has been extended only to areas where there are comparable federal policies derived from federal statutes that justify the preemption of state law. In this case, there is no federal statute that addresses state-law contract obligations with respect to the right of publicity, and no indication that Congress sought to abrogate contracts in this area that are otherwise enforceable under state law. I would not fashion a rule of federal common law that *827abrogates these freely negotiated contractual provisions. See Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir.1987).
For these reasons, I would reverse the district court’s grant of summary judgment in favor of CBC.