What are a veteran NFL player’s name, image, and likeness worth in the burgeoning (but recently beleaguered-by-lawsuits) daily fantasy sports gaming industry? NFL wide receiver Pierre Garçon’s putative class action lawsuit against FanDuel Inc., Civil Action No. 8:15-cv-03324, filed October 30, 2015, in the United States District Court for the District of Maryland, will bring that issue to a head. Garçon alleges violations of his right of publicity and of the Lanham Act, and that FanDuel has been unjustly enriched through its use of Garçon’s name, image, and likeness in its advertising campaign.
Chances are that since the 2015 NFL season started you’ve seen FanDuel’s daily fantasy sports website and fantasy football contest advertisements—they’re on heavy rotation on several major television networks, YouTube, Instagram, Facebook, and so on. And if you’ve seen FanDuel’s advertisements, there’s also a good chance that you’ve seen Garçon’s name and face—according to Garçon’s complaint, they are featured prominently in much of FanDuel’s advertising.
And while Garçon may not be a household name on the order of Tom Brady or Peyton Manning, he is widely recognized. He has been a standout NFL player for several years, having led the league in receptions in 2013. He alleges in a three-count class action complaint that FanDuel has “misappropriate[ed]” his and other well-known NFL players’ names, images, and likenesses to drive traffic to its website and sell its online games, depriving the players of the value of their publicity rights. This advertising, Garçon asserts, “is likely to create confusion among potential users as to [Garçon’s] sponsorship or approval of FanDuel and its daily fantasy football gaming products.” While Garçon once had a social media marketing agreement with FanDuel—he promoted FanDuel’s contests on Twitter as recently as 2014—that agreement apparently terminated sometime after the 2014 NFL season. FanDuel, unlike its daily fantasy sports rival DraftKings, has no licensing agreement with the NFL Players Association to use players’ names, images, or likenesses to market its products.
Garçon is not the first major athlete to challenge a billion-dollar industry’s use of his name, image, and likeness. Although some of his legal theories differed from Garçon’s—in addition to violations of his right of publicity, he alleged violations of the Sherman Antitrust Act—former NCAA basketball standout Ed O’Bannon’s class action lawsuit against Electronic Arts, the NCAA, and the Collegiate Licensing Company is the spiritual precursor of Garçon’s, in that it attacked a gaming industry’s exploitation of players’ names, images, and likenesses. O’Bannon’s lawsuit resulted in a settlement of over $40 million for the class of former college athletes who appeared in Electronic Arts video games.
Garçon’s case, however, is not without obstacles. Under C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), reh’g and reh’g en banc denied, Nos. 06-3357 & 06-3358 (8th Cir. Nov. 26, 2007), players do not to have a right of publicity for their names and statistics. And under C.B.C., the First Amendment right of the seller of fantasy sports games supersedes the rights of publicity of the players featured in the games.