As if the daily fantasy sports industry didn't have enough to worry about—facing federal and state investigations into insider trading, multiple class action complaints, and a new system of self-regulation—now a National Football League player has charged that one of the biggest sites misappropriated his likeness in its game as well as its ads.
"In the operation and sale of online daily fantasy football gaming products, Defendant FanDuel knowingly and improperly exploits the popularity and accomplishments of current Washington Redskins wide receiver Pierre Garcon, along with all the other National Football League players at offensive skilled positions," according to the complaint filed by Garcon in Maryland federal court. "In addition, through a comprehensive advertising campaign and in its daily fantasy football contests, Defendant FanDuel routinely uses the name and likeness of these NFL players to promote FanDuel's commercial enterprise, collecting huge revenues from entry fees, without the authority of Mr. Garcon or the other NFL players."
According to the complaint, the company "repeatedly" used Garcon's name and other well-known NFL stars to promote the FanDuel game and receive multimillion-dollar revenues. In one infomercial, the company used Garcon's name 53 times over the course of 28 minutes.
Seeking to certify a class of all NFL players whose names and/or likenesses were used by the defendant dating back to January 1, 2013, Garcon listed counts for deprivation of publicity rights, violation of the Lanham Act, and unjust enrichment. The complaint requested an injunction on the use of the putative class members' names and likenesses, as well as damages and disgorgement.
The lawsuit is just the latest problem for the daily fantasy sports industry. In October, news reports revealed that employees at two of the largest fantasy sites—FanDuel and DraftKings—regularly played on the other site, in some cases winning significant amounts of money. Allegations of the improper use of insider information prompted letters from lawmakers, class action lawsuits, multiple government investigations (including by the Federal Bureau of Investigation and the New York Attorney General's office), and new oversight from the Nevada Gaming Commission.
To read the complaint in Garcon v. FanDuel, click here.
Why it matters: Garcon faces the challenge of overcoming an Eighth Circuit decision from 2007 that found players do not have publicity rights in their name and statistical information in the context of fantasy sports. In an effort to distinguish the CBC Distribution and Marketing v. MLB Advanced Media case, Garcon emphasized that FanDuel used his image in its advertisements, including a paid infomercial where his name was used more than 53 times in the course of 28 minutes. He also stated a claim under the Lanham Act, arguing that the use of his name and image with such frequency leads consumers to mistakenly believe that he endorses the site. In response to the lawsuit, the company released a statement referencing the MLB decision. "We believe this suit is without merit. There is established law that fantasy operators may use player names and statistics for fantasy contests," the company said.