Last week, the plaintiff collegiate athletes in a putative class action lawsuit pending in the Southern District Court of Indiana filed their opposition to FanDuel and DraftKings’ respective motions to dismiss. The opposition seeks to keep alive the claims that the fantasy sports companies violated their rights of publicity under Indiana law by including their respective names and athletic records as part of the companies’ online fantasy contest offerings.

How did the collegiate athletes’ argue against dismissal of their right of publicity claims?

The collegiate athletes’ arguments opposing the sought after dismissal consisted of the following:

  • A valid claim was made for misappropriation of their rights of publicity that cannot be dismissed at such an early stage of the litigation;
  • The fantasy sports companies are not entitled to First Amendment free speech protections because the companies’ fantasy sports contests allegedly violate the Indiana State gambling laws (editorial note: Indiana has passed legislation formally legalizing paid fantasy sports contests); and
  • The exceptions to the right of publicity statute, such as making use of newsworthy material and/or the reporting of a topic of public interest, do not protect the fantasy sports companies’ use of the collegiate athletes’ names and likenesses.

DraftKings and FanDuel will each be afforded an opportunity to submit responses to the collegiate athletes’ opposition arguments before the application to dismiss the right of publicity claims is decided by the Court.

Keeping Your Fantasy Sports Venture Safe

Fantasy sports contests and the laws and regulations that govern them, continue to grow and evolve. Many states that have recently passed fantasy sports contest-related legislation have included prohibitions against offering contests involving collegiate and amateur athletes. While there is a clear trend towards exclusion, there is not yet a national consensus on the legality of offering collegiate options among fantasy sports contests. Against this backdrop, it remains imperative to engage competent legal counsel to become/remain compliant with applicable law when setting up or operating fantasy sports contests involving collegiate athletes.