Last Friday, Washington Redskins wide receiver Pierre Garçon filed a class action lawsuit against fantasy sports operator FanDuel Inc. (“FanDuel”). Among other things, the suit alleges that FanDuel violated National Football League (“NFL”) players’ rights of publicity through the unauthorized commercial use of each class member player’s name and likeness.

Can fantasy sports companies use professional athletes’ names and photos without permission?

Pierre Garçon Sues FanDuel

On October 30, 2015, Garçon initiated the subject class action lawsuit against FanDuel on behalf of each and every NFL player whose name and likeness was used by FanDuel since January 1, 2013. The complaint alleges that “FanDuel knowingly and improperly exploits the popularity and accomplishments of . . . [NFL] players at offensive skilled positions” in violation of the players’ rights of publicity. Garçon’s class action suit references screenshots of FanDuel’s notoriously extensive advertising efforts, team lineups and player updates – all featuring the name and likeness of NFL players.

“FanDuel owes its success operating these daily fantasy football contests to NFL players, like Plaintiff and Class members, whose names and likenesses make FanDuel’s games possible. For without them and their on-the-field success, daily fantasy football would not exist,” the complaint alleges. The lawsuit includes additional claims against FanDuel for alleged unjust enrichment and Lanham Act violations for false endorsement.

Name and Likeness and the Right of Publicity

As readers of this blog are aware, intellectual property rights exist with respect to a person’s name and likeness. The laws of at least 47 states have acknowledged a “right of publicity,” which grants an individual the right to prohibit third parties from commercializing his or her name, image, voice and/or likeness without permission.

Although the complaint filed last Friday does not reference specific statutes or case law in connection with the plaintiff’s right of publicity claims, Garçon’s home state of Virginia allows the victim of a right of publicity violation to sue for damages and ask the court to stop the continuing use of his or her identity without consent. If the violation is committed knowingly, the offender may be liable for additional punitive damages and could face criminal liability and fines of up to $1,000 per violation. Virginia’s high court previously affirmed that $50,000 (in 1995 dollars) was a reasonable assessment of damages for knowingly violating the rights of publicity of former Redskins running back John Riggins.

Use of Name and Likeness Without Permission Is a Risky Endeavor

Fantasy sports companies should not exploit an athlete or spokesperson’s name or likeness for commercial purposes without first obtaining his or her written consent to do so. As Garçon’s allegations demonstrate, a penny of prevention is worth a pound of cure with respect to right of publicity clearance.