On Thursday, Oct. 24, the Indiana Supreme Court answered a vital question surrounding online fantasy sports sites: Does a fantasy sports site need permission before it uses a player’s name and statistics in its online fantasy game? The Indiana Supreme Court answered no to this question, falling in line with the national trend of decisions favoring sports betting.
Former collegiate athletes Akeem Daniels, Cameron Stingily, and Nicholas Stoner brought a class-action suit against FanDuel, Inc. and DraftKings, Inc., claiming that the use of their names and likenesses in the defendants’ online fantasy sports game violated plaintiffs’ right to publicity under Ind. Code § 32-36-1-8(a). Daniels, No. 18S-CQ-00134 at 3. Indiana’s right of publicity statute generally prohibits the use of a person’s name or likeness for commercial gain without the consent. Id. at 4. Defendants removed the case to federal court, and then filed a motion to dismiss, asserting that their use of plaintiffs’ names and likeness fall within one of the statutes various exceptions. Id. at 3. Specifically, Defendant’s asserted that plaintiffs’ permission was not required because the information used on their site fell within the “political or newsworthy” exception, as well as the “public interest” exception to the statute. Id. at 5. The Southern District of Indiana dismissed plaintiffs’ suit, finding that both of these exceptions applied. Id. at 3. Plaintiffs appealed to the 7th Circuit. Id. Because case law applying Indiana’s right to publicity statute was sparse, the 7th Circuit certified the question to the Indiana Supreme Court, asking if an athlete’s permission is required in this circumstance. Id.
The Indiana Supreme Court’s opinion addresses only one of the two exceptions asserted by the defendant: the “political or newsworthy” exception. Id. at 5. This exception provides that the right of publicity does not require plaintiffs’ permission if their names and likenesses are used in “material that has political or newsworthy value.” Id. (citing I.C. §32-36-1-1(c)(1)(B)). The Supreme Court determined that the term “newsworthy” should not be limited solely to current events, but should be interpreted broadly to include “all types of factual, educational, and historical data…concerning interesting phases of human activity.” Id. at 8. The court determined that defendants’ use of plaintiffs’ information fell within this broad exception. Id. It analogized the defendants’ service to the publication of player names and stats in newspapers and websites across the nation, and reasoned that defendants’ service should not be treated differently simply because they created a new, innovative way to profit off of such publication. Id. at 9.
The Indiana Supreme Court was mindful in keeping its conclusion narrow, holding that, on this specific set of facts, the “political or newsworthy” exception applies. Id. at 11-12. The case is now back in federal court where the 7th Circuit, informed by the Indiana Supreme Court’s opinion, must make a decision on plaintiffs’ appeal. To date, no further decision by the 7th Circuit has been made. If the 7th Circuit does affirm the district court, its decision will be the latest in a notable trend of decisions nationwide favoring sports betting generally. Most notable of these national decisions was the SCOTUS decision in Murphy v. NCAA [138 S. Ct. 1461] where it struck down a 1992 federal prohibition on sports betting, paving the way for States to legalize sport’s betting on an individualized basis. The Indiana Supreme Court’s opinion in this case represents yet another hurdle passed by betting companies like FanDuel and DraftKings in the rise of legal sports gambling in the U.S. and Indiana. It represents a major blow to players looking to get a cut of the rapidly growing sports gambling pie.
Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.