This week, FanDuel and DraftKings each made motions to dismiss a putative class action lawsuit pending in the Southern District Court of Indiana. In that lawsuit, three former college football players sued the fantasy sports companies for alleged violation of their rights of publicity under Indiana law by including their respective names and athletic records as part of the online fantasy contest offerings.

What are the arguments in support of dismissal of the collegiate athletes’ right of publicity claims?

The fantasy sports companies argued that several exceptions to liability under Indiana’s right of publicity statute applied to the claims, including:

  • The athletes names and likenesses constitute material of newsworthy value;
  • The use of the names and likenesses were in connection with reporting topics of a general or public interest;
  • The inclusion of the athletes’ names on the fantasy sports companies’ websites truthfully identified the athletes as performers of recorded performances; and
  • The use of the names and likenesses were contained in advertisements for a use that is otherwise excepted under the statute.

First Amendment and Right of Publicity Claims

Additionally, the fantasy sports companies argued that the First Amendment protects them from liability for use of the players’ names and performance records. Among the reasons cited in support of the First Amendment defense was that the information is readily available in the public domain.

Keeping Your Fantasy Sports Venture Out of Trouble

Fantasy sports contests and the laws and regulations that govern them, continue to grow and evolve. Many states that have recently passed legislation formally legalizing fantasy sports contests 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.