The US Court of Appeals for the Seventh Circuit affirmed a district court’s dismissal of a right of publicity complaint, finding that the fantasy sports operators’ use of player information fell within the “newsworthy value” exception. Daniels v. FanDuel, Inc., Case No. 17-3051. (7th Cir., Nov. 29, 2018) (Easterbrook, J).
Three former college football players sued fantasy football organizations FanDuel and DraftKings claiming that the use of their names, images and statistics on FanDuel and DraftKings’ websites violated their right of publicity under Indiana law. The fantasy football organizations argued that their use was protected under two Indiana right of publicity law exceptions: the newsworthy value exception and the public interest exception. The district court agreed and dismissed the claims. The former college football players appealed.
The Seventh Circuit certified a question to the Indiana Supreme Court, asking whether, under Indiana law, fantasy sports organizations that receive payment to play and then pay cash prizes to customers must obtain the consent of sports players whose names, pictures and statistics they use. The Indiana Supreme Court responded that the use of college athletes’ names, pictures and statistics by fantasy sports operators does not violate Indiana right of publicity law because the use falls under the newsworthy value exception since these players’ names, images and statistics are published in newspapers and websites nationwide, and it would not be sound law to prevent fantasy sports operators from using such publicly available information. The Indiana Supreme Court noted, however, that any implication that a player is commercially endorsing the fantasy games would not fit under an exception. While the Indiana Supreme Court did not decide whether there was commercial endorsement in this case, it stated that it was unlikely, given that fantasy sports include all players, which generally does not create an impression that one particular player is endorsing the organization. The Indiana Supreme Court did not decide whether use of an athlete’s name, likeness and statistics falls into the public interest exception.
The Seventh Circuit affirmed the district court finding, basing its decision predominately on the Indiana Supreme Court’s answer that fantasy sports operators’ use of player information falls within the newsworthy value exception. The Court noted that the Indiana Supreme Court did not decide whether fantasy sports amount to gambling, or whether gambling would make such organizations ineligible for these exceptions, but stated that such questions should not be decided by the district courts and that therefore there were no further issues for the federal courts to decide.