18 May 2018

Players associations file amicus curiae brief with Indiana Supreme Court in FanDuel/DraftKings litigation


Michael A. Rueda
Associate | US

On Friday, March 18th the MLBPA, NFLPA, MLSPA, NHLPA, WNBPA, NBPA, WNTPA filed an amicus curiae brief with the Indiana Supreme Court in the FanDuel/DraftKings litigation. The brief argued that the Indiana Supreme Court should hold that Indiana's statutory “newsworthiness” and “public interest” exemptions require a careful, context-specific analyses to determine whether the product (in this case, online fantasy-sports games) serve to disseminate newsworthy information or report or broadcast matters of public interest. According to the associations filing the brief, the context surrounding FanDuel's and DraftKings' use of the athlete names and likenesses, is overwhelmingly commercial and not driven by an informative purpose as they merely promote competition with financial stakes.

The case was initially started in the U.S. District Court for the Southern District of Indiana by former college football players that sued FanDuel and DraftKings for using their names, photos and statistics in online fantasy-sports games without their consent. The plaintiffs argued that the right of publicity statute in Indiana required the plaintiffs' consent for any commercial use of their names and information. The District Court dismissed the complaint. On appeal, the U.S. Court of Appeals for 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. The Seventh Circuit found that it shouldn't be the court to decide the question. The Seventh Circuit certified the case to the Indiana Supreme Court to answer the specific question of “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.” To see a copy of the brief: http://thewhitebronco.com/pa-amicus-in-supreme-court

Michael A. Rueda Associate | Greenwich, New York