Fantasy sports and publicity rights: The balancing act as athlete unions seek compensation for use of name and likeness

After the U.S. Supreme Court's decision to allow states to legalize a wide range of sports-betting operations, professional athletes have considered whether they may be successful in bringing suit for compensation of the use of their names and likenesses. A few days after the Supreme Court decision, unions for certain professional athletes filed an amicus brief in an Indiana Supreme Court Case against DraftKings and FanDuel stating that the daily fantasy sports operators are infringing on the athletes' publicity rights. The dominant view is that fantasy sports do not require the licensing of player identities because the particular use is protected by the First Amendment. However, the pending Indiana Supreme Court case could change this status quo. The Indiana Supreme Court is performing a technical balancing test of protecting athletes' right to control the commercial use of their names and likeness with the fantasy game operators' free speech concerns. Ultimately, professional athletes might be more successful in getting a cut of sports-betting industry by lobbying state governments or through collective bargaining with their respective leagues. Alternatively, fantasy sports operators may consider striking deals directly with player unions as it would allow the operators to use athlete names and likenesses for more expansive promotional purposes.

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