7th Circuit asks Indiana justices’ guidance in fantasy sports suit

A federal right-to-publicity lawsuit brought against online fantasy sports sites by three former college football players — including a former Indiana University player — may hinge on a question certified to the Indiana Supreme Court by the 7th Circuit Court of Appeals on Wednesday.

The three former players — ex-IU receiver Nick Stoner and ex-University of Northern Illinois players Akeem Daniels and Cameron Stingily — sued FanDuel and DraftKings for allegedly using their names, photos and statistics in their fantasy football wagering programs without the players’ consent. The athletes alleged Indiana’s right-of-publicity statute gave them control over the commercial use of their names, but the Indiana Southern District Court disagreed and dismissed their case in October.

Specifically, Judge Tanya Walton Pratt found the players’ on-field performances were “newsworthy” and of “general or public interest,” exempting them from the statute, Indiana Code section 32-36-1-8. That ruling meant FanDuel and DraftKings could use the players’ names in fantasy games and general advertising.

On appeal in Akeem Daniels, et al. v. FanDuel, Inc., and DraftKings, Inc., 17-3051, Stoner and the Northern Illinois players argued the fantasy sports operations were illegal gambling enterprises unable to take advantage of any statutory exemptions. They also noted that producers of video games such as Madden NFL are required to obtain players’ consent before including their information in the games.

But Judge Frank Easterbrook wrote Wednesday that the central question is whether the players’ photos and information appear “in… (m)aterial that has … newsworthy value” or “in connection with the … reporting of an event … of general or public interest,” as would be required for the statutory exemptions to apply. He also noted a dearth of Indiana caselaw regarding right-to-publicity cases involving athletes.

Thus, the appellate court certified the case to the Indiana Supreme Court, pursuant to Indiana Rule of Appellate Procedure 64, to answer this question: “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 contests, in advertising the contests, or both.”

“We appreciate the possibility that the answer to the question we have framed may not end this case,” Easterbrook wrote. “Defendants say that the Constitution supersedes any right of publicity that Indiana may recognize.”

 “It would be inappropriate for us to decide that question, however, without knowing exactly what it is that state law provides,” the judge continued. “Otherwise we are at risk of issuing an advisory opinion.”

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