Lawsuit Concerning Use of Student-Athletes’ Name and Likeness by DraftKings and FanDuel Continues

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On February 22, 2018, two Seventh Circuit judges, Judge Frank Easterbrook and Judge Ilana Diamond Rovner, said that they would likely need an answer from the Indiana judiciary before they can decide whether to revive a proposed class action suit brought against DraftKings and FanDuel. 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. However, on September 29, 2017, the suit was dismissed. On February 22, 2018, Judge Easterbrook and Judge Rovner presided over an oral appeal to revive the statute; however, they expressed their doubts about the federal courts ability to make an adequate ruling.

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. According to Judge Pratt, the materials challenged by the class of players falls within the “newsworthiness” exception, because in the context of professional sports, the players athletic achievements and activities are “newsworthy” as contemplated by the statutory exception. Also, the materials challenged by the class of players fell within the “public interest” exception, because “[t]he scope of the subject matter which may be considered ‘of public interest’ or ‘newsworthy’ has been defined in most liberal and far reaching terms, [which includes] college football.”

According to Judge Easterbrook, “the Indiana Supreme Court has never weighed in on the specific meaning of the newsworthiness exception, so the federal courts have no guidance … when we see cases in which federal courts are completely at sea, in the sense there are no signposts from the state judiciary, I am inclined that we should perhaps certify this to the state court and get an authentic reading of state law, rather than trying to guess.” Judge Easterbrook told an attorney representing the class of student athletes that he disagreed with the district court judge’s interpretation of the statute’s exception. However, he rejected the attorney’s efforts to cite cases from other states and courts, dealing with similar statutes, in an effort to clarify the Indiana statute. Judge Easterbrook repeatedly warning the attorney that only Indiana law applies.

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