On March 7, 2018, two Seventh Circuit judges, Judge Frank Easterbrook and Judge Ilana Diamond Rovner, certified the following question to the Supreme Court of Indiana, “Whether online fantasy‐sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both.”
As we have previously reported, 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 alleging that FanDuel and DraftKings profited from the use of the students-athletes names, images, likenesses, and statistical data, in violation of Indiana’s Right of Publicity Statute. The suit was dismissed in September 2017, but on later on appeal, Judge Easterbrook and Judge Rovner were asked to revive the suit. Judge Easterbrook and Judge Rovner expressed their doubts about the Seventh Circuit’s ability to make an adequate ruling under Indiana’s Right of Publicity Statute.
Back in September 2017, Judge Tanya Walton Pratt dismissed the suit, finding that DraftKings and FanDuel were exempt from Indiana’s Right of Publicity statute because of the “newsworthy” and the “public interest” exceptions. However, Judge Easterbrook and Judge Rovner were concerned over whether the students-athletes names, images, likenesses, and statistical data was “newsworthy” or in the “public interest” under the Indiana law. Judge Easterbrook and Judge Rovner felt that the lack “of precedent from Indiana [state courts] and the dearth of precedent from other states” would not allow them to make an adequate ruling and they even expressed doubts about Judge Pratt’s ability to make an adequate ruling. According to the certification, the student-athletes argued that “FanDuel and DraftKings are illegal gambling enterprises to which none of the statutory exemptions applies.” FanDuel and DraftKings argued that “their operations are lawful and that at all events none of the language in the Right of Publicity Statute makes anything turn on a question extrinsic to the Right of Publicity Statute itself.”
Because the claim arises under Indiana state law, Judge Easterbrook and Judge Rovner turned to Indiana’s judiciary to see what weight the state gives to the following statutory language, “material that has … newsworthy value” or “in connection with the … reporting of an event … of general or public interest.” Judge Easterbrook and Judge Rovner have also asked whether Indiana views paid fantasy sports as unlawful gambling and whether it treats illegality as material to the Right of Publicity Statute.