The Indiana Supreme Court recently heard arguments in a case involving athletes who want to be compensated for the use of their names, photos and statistics by fantasy sports companies. The athletes claim a state law gives individuals the “right of publicity” to control how their names are used for commercial purposes. If athletes win the case, players unions could demand licensing fees from legal casinos that use players for “proposition” bets based on an individual’s performance. The case could have a far-reaching impact on sports betting.
Former Indiana University football player Nick Stoner and two other plaintiffs filed a class-action lawsuit against FanDuel and DraftKings fantasy sports companies. A federal district judge dismissed the case in 2017 but the athletes filed an appeal. In March, the appellate court asked the Indiana Supreme Court to interpret state law on the issue, citing no precedent in Indiana and a “dearth” of precedent in other states.
Chief Justice Loretta H. Rush invited “friend of the court” briefs due to widespread interest in the case. Briefs were filed by the players unions of all the major sports leagues; Indianapolis-based CMG Worldwide, which markets and protects the publicity rights of its long list of legendary people; and the Fantasy Sports Trade Association.
One critical aspect of the case is whether the fantasy sports companies provide material that’s “newsworthy” or “reporting of an event of public interest.” That would allow FanDuel and DraftKings to operate under an exception to Indiana law that gives individuals control over the commercial use of their name.
Fantasy sports players earn points for their athletes’ performance in various statistical categories. Winners are determined by total points. The fantasy sports sites update statistics in real-time. FanDuel and DraftKings attorney Ian Gershengorn said, “Public domain statistics are absolutely newsworthy.” He said newspapers routinely use athletes’ names and statistics. “This is about updating technology for the 21st century and allowing interaction with those statistics. The competitive aspect enhances the newsworthiness of fantasy games. That is exactly the kind of interaction with statistics that helps people understand them better.”
The athletes’ attorney Todd McLawhorn said the fantasy sports companies are “trying to be a newspaper and a game.” He said the fantasy games themselves have to be newsworthy, not the statistics being used. “I would submit no one is interested in how a particular individual’s fantasy team fared. No one cares, except the individual. It’s not news reporting,” McLawhorn said.
Another attorney for the athletes said if FanDuel and DraftKings win the case, they could use high school athletes in commercial fantasy games.
Gershengorn said, “We don’t do that and we have no plans to do that.” However, he noted FanDuel and DraftKings would be within their rights to offer games using high school players. The fantasy companies could use high school players’ names and statistics “the same way those players could be covered in the New York Times or Indianapolis Star,” he said.
Justice Mark Massa asked if sports betting becomes legal, would a boxer in Indiana have publicity rights if a company takes bets on the fight. An attorney for the athletes, W. Clifton Holmes, said, “They possibly could, yes.” He explained if players have publicity rights that extend to fantasy sports, they could have the same rights for individual “proposition” bets as legal sports gambling grows, and possibly collect licensing fees from casinos taking bets.
The justices are not expected to issue a ruling for several weeks.
