DraftKings and FanDuel Once Again Fight Back Against Lawsuit in Indiana

On January 16, 2017, FanDuel, Inc. and DraftKings, Inc. once again argued their websites do not violate Indiana’s right of publicity statute. As we have previously covered in May 2017, a group of 3,000 college athletes, led by former Northern Illinois University football players Akeem Daniels and Cameron Stingily, and former Indiana University football player Nicholas Stoner, bought a suit against DraftKings and FanDuel. The suit alleged that FanDuel and DraftKings were profiting from the use of the students athletes names, images, likenesses, and statistical data, in violation of Indiana’s right of publicity statute. In September 2017, U.S. District Judge Tanya Walton Pratt granted FanDuel and DraftKings’ motion to dismiss because the use of the student athletes names, images, and likenesses on the website was within the “newsworthiness” and “public interest” exceptions of the right-of-publicity statute. Also, Judge Pratt held that the statute pertained to the actual use of identifying characteristics, “[a]dopting plaintiffs’ reading of the statute would bring an almost limitless universe of materials within its reach, with obvious First Amendment implications.”

The class of college athletes has since appealed the decision. In a brief to the Seventh Circuit, FanDuel and DraftKings argued that they simply “provide an online platform for individuals to enter daily fantasy sports contests.” Further, FanDuel and DraftKings’ website “rely on historical data, abundant commentary, and analysis, to assemble fantasy rosters of real athletes.” FanDuel and DraftKings argue that the names and statistics used on the websites has “been read, digested, analyzed, and debated by tens (if not hundreds) of millions of fans” which is clearly “both ‘newsworthy’ and of broad ‘public interest.’” On the other hand, the class of college athletes argues “that the use of names and statistics on [the] websites without authorization and compensation violates Indiana’s right of publicity.”

Indiana’s right of publicity statue has several exceptions. Back in September 2017, Judge Pratt ruled that the exceptions in sections 1(c)(1)(B) and 1(c)(3)(I) applied to FanDuel and DraftKings’ use of the college athletes names, images, likenesses, and statistical data. As stated in the exceptions, the dissemination, use, and analysis of publicly available statistical information falls within the “newsworthiness” and “public interest” exceptions.

Barring any unforeseen arguments or statutory interpretation, it appears that the student athletes’ claim that FanDuel and DraftKings use violates the statute is a long shot. However, the class of college athletes also argues that the websites “constitute illegal gambling so their speech is unprotected under the First Amendment.” However, Judge Pratt previously held that the legality of website’s operation and the content of their speech are two completely different issues. It is now up to the Seventh Circuit to decide if the college athletes’ suit has merit. Nevertheless, this is just another segment in the ongoing debate over properly compensating college athletes.


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