DraftKings and FanDuel Dodge Former College Athletes’ Likeness Suit

On September 29, 2017, an Indiana federal judge threw out a proposed class action brought by college athletes against DraftKings and FanDuel for allegedly profiting off the use of their names, images, and likenesses. The judge ruled that the college athletes’ claims were barred by exemptions to Indiana’s right-of-publicity law. The case was originally brought in Indiana state court by former Northern Illinois University football players Akeem Daniels and Cameron Stingily, and former Indiana University football player Nicholas Stoner on behalf of about 3,000 former college football and basketball players. The case was then removed to federal court.

Judge Tanya Walton Pratt held the use of fictitious salaries and commentary on the student-athletes’ likely performances was within the “newsworthiness” exception of the right-of-publicity statute. The student-athletes alleged the commentary and salaries were “associated with” their name and likenesses, but Judge Pratt determined the law pertains to the actual use of identifying characteristics. Judge Pratt wrote that, “[a]dopting plaintiffs’ reading of the statute would bring an almost limitless universe of materials within its reach, with obvious First Amendment implications.”

Judge Pratt also ruled the plaintiffs’ claims were barred by the statute’s public interest exemption. Although a close call due to its association with names and likenesses of the student-athletes, the judge held the information can be classified as “reporting” and thus qualifies for the exemption. Counsel for DraftKings made a statement in agreement with the ruling, stating that sports fans have an interest in following and tracking their favorite players, which falls under the newsworthy and public interest exceptions.

Additionally, Judge Pratt denied DraftKings’ and FanDuel’s affirmative defense that the First Amendment barred the claims because it would require a greater analysis than was available at that stage of the case. The judge also denied DraftKings’ argument that the Copyright Act preempted the right-of-publicity statute. Also rejected by Judge Pratt were the student-athletes’ claims that DraftKings and FanDuel were just illegal gambling sites run similar to casinos by accepting paid wagers and taking a cut of the money. The daily fantasy sites argued against this classification, claiming the fantasy sports contests are not and never have been illegal in Indiana. The judge held that regardless of whether the sites were illegal, there was no statute or authority that would hold those actions negated the right-of-publicity statute’s exemptions. Ultimately, the student-athletes did not have a successful argument that could keep the case in court.

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