Pierre Garcon v. FanDuel, Inc.: The Latest Class Action in Daily Fantasy Sports

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The legal issues for the daily fantasy sports (DFS) industry continue to mount following the putative class action filed by Pierre Garcon, a NFL wide receiver for the Washington Redskins. After news of the DFS scandal broke in late-September 2015, in which industry leaders FanDuel, Inc. and DraftKings, Inc. were accused of insider trading, nearly a dozen federal class actions have been filed against the two companies.

Garcon’s action, which was filed on October 30, 2015, names only FanDuel, Inc. as a defendant.  The complaint alleges that FanDuel misappropriated the publicity rights of the NFL’s offensive skill-positioned players (i.e. quarterbacks, receivers, running backs, etc.), usurping their names, images, and likenesses without permission and for financial gain.  The action claims that FanDuel “prominently posts” the names and images of players on its website, and that it uses the same for television advertisements.

The complaint states that “FanDuel’s regular use of [Garcon’s] name in its television and Internet advertising is likely to create confusion among potential users as to [Garcon’s] sponsorship or approval of FanDuel and its daily fantasy football gaming products.”  “Nevertheless,” the complaint continues, “defendant FanDuel knowingly exploits plaintiff Garcon’s and these players’ valuable publicity rights for its own financial gain through its all-inclusive advertising campaign and various daily fantasy sports products.”

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