DraftKings And FanDuel Prevail In Right Of Publicity Case Against Former College Athletes

The Indiana Supreme Court has ruled in favor of DraftKings and FanDuel in a case that concerned whether the fantasy sports operators needed to pay up for use of players’ right of publicity in connection with the game play. The court concluded that the fantasy sports companies’ use of player names, images and statistics was for a “newsworthy” purpose and therefore constitutes an exception from requiring that the athletes be paid for such use.

“Considering the arguments presented in this case, Defendants’ use of players’ names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation,” wrote the Court. “We agree that, ‘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 was agreeing with a 2007 case titled, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball, which also previously held that the use of statistics and likenesses of baseball players in fantasy sports contests does not implicate right of publicity in terms of advertising. No one would expect that the use of names, images or likenesses in association with the actual game play leads to new commercial opportunities with sponsors that would otherwise not be present.

As such, the determination was that the use by DraftKings and FanDuel has not been to aid commercial purposes, but instead to truly serve a newsworthy purpose — to better inform the consumer.

The initial lawsuit was brought by former college athletes Akeem Daniels, Cameron Stingily and Nicholas Stoner. They claimed that, because they never provided DraftKings or FanDuel with consent to use their right of publicity, they should be compensated a reasonable royalty. Ultimately, after making their way up to the Indiana Supreme Court, they are rewarded with nothing.