On Tuesday, June 26, 2016, FanDuel asked an Indiana federal court to dismiss it from a putative class action accusing daily fantasy sports operators of profiting off the unauthorized use of former NCAA athletes’ names and likenesses. It contended that its use of the names and likenesses was protected by the First Amendment.
FanDuel has had trouble with using the NCAA as a portion of its daily fantasy sports platform before, as back in March it had to reach a deal with the NCAA agreeing to temporarily suspend college sports on its platform at the close of the NCAA tournament. In its statement, FanDuel noted that states like Indiana had already passed sports laws with carve-outs barring amateur sports contests, saying that they supported the efforts and would “actively support bills containing the same provisions” going forward.
How this argument plays out should have some interesting implications. While NCAA contests only constitute three percent of FanDuel’s total revenue, if its First Amendment argument is successful one could see it being used to justify other entities’ use of such names and likenesses, making the Indiana court’s decision all the more important.