The US Court of Appeals for the Seventh Circuit asked the Indiana Supreme Court to weigh in on whether the state’s right-of-publicity law gives athletes a right to challenge fantasy sports companies’ websites for using their likenesses and statistics in their contests. Akeem Daniels, et al. v. Fanduel Inc., et al., Case No. 17-3051 (7th Cir., Mar. 7, 2018) (Easterbrook, J).

Nick Stoner, Akeem Daniels and Cameron Stingily, former college football players, sued Fanduel and DraftKings for using their names, photos and statistics in online fantasy-sports games without the plaintiffs’ consent. The plaintiffs argued that the right of publicity statute in Indiana gives them control over the commercial use of their names and data. The district court dismissed the complaint, relying on the following two exemptions:

• The use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms in material that has political or newsworthy value

• The use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms in connection with the broadcast or reporting of an event or a topic of general or public interest

In dismissing the complaint, the district court held that on-field sports performances and statistics are newsworthy and of general or public interest, meaning the defendants could use plaintiffs’ names in fantasy games and advertising.

On appeal, the plaintiffs argued that the district court misunderstood the scope of the two exemptions because defendants are illegal gambling companies and therefore the statutory exemptions do not apply to them.

Noting that there is no precedent regarding this issue, the Seventh Circuit found that while the district court’s ruling analyzes whether the players’ names and statistics are newsworthy and of general public interest, the question under Indiana’s statute is whether the players’ photos and information appear in material that has newsworthy value or in connection with the reporting of an event of general or public interest such that the statutory exemptions would apply. Finding it inappropriate for the Seventh Circuit to decide the question, the Court certified the case to the Indiana Supreme Court to answer the specific question as to “[w]hether 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.”