Justices to weigh how right to publicity affects fantasy sports

April 20, 2018

The Indiana Supreme Court has agreed to consider how Indiana’s right-to-publicity statute affects the fantasy sports industry in order to provide guidance to a fantasy football case pending in the 7th Circuit Court of Appeals.

The federal appellate panel hearing Akeem Daniels, et al. v. FanDuel, Inc. and DraftKings, Inc., 17-3051, certified the case to the Indiana Supreme Court in March 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 the contests, in advertising the contests, or both.” The certification came after the U.S. District Court for the Southern District of Indiana dismissed three former college football players’ lawsuit against FanDuel and DraftKings.

Ex-Indiana University receiver Nick Stoner and ex-University of Northern Illinois players Akeem Daniels and Cameron Stingily sued the fantasy sports sites for allegedly using their names, photos and statistics in their fantasy football wagering programs without the players’ consent. The players appealed to the 7th Circuit to reinstate their case, but the appellate panel declined to rule in light of the pending question.

“We appreciate the possibility that the answer to the question we have framed may not end this case,” Judge Frank Easterbrook wrote in March. “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,” Easterbrook continued. “Otherwise we are at risk of issuing an advisory opinion.”

Counsel for both sides must file principal briefs by May 18, and response briefs will then be due on June 9. The court also invited amicus curiae to file briefs by the May 18 deadline.

The justices will hear oral argument on the certified question at 10:30 a.m. on June 28.