Court Ends College Players’ Challenge to Fantasy Sports Games

CHICAGO (CN) – The Seventh Circuit on Thursday declared college athletes’ lawsuit against fantasy sports websites FanDuel and DraftKings over because the Indiana Supreme Court ruled last month that they can use players’ name and images without their consent.

Akeem Daniels and Cameron Stingily both played football for Northern Illinois University, and were joined as plaintiffs by former Indiana University football player Nicholas Stoner in a lawsuit claiming FanDuel and DraftKings used their likenesses without permission.

FanDuel and DraftKings run fantasy sports games where users pay an entry fee and assemble virtual sports teams to compete against other users for cash prizes. The games use the names of real athletes and use real-world stats to determine points for the assembled teams.

Following the filing of the original lawsuit, DraftKings and FanDuel suspended their offering of games based upon collegiate sports, but brought back such contests this year.

Daniels, Stingily and Stoner argued that the use of their names in the fantasy games and advertisements violated their rights to publicity as they did not agree to be involved with the websites. They sought $5 million in damages.

The players associations for the NFL, NBA, WNBA, MLB, NHL, U.S. Women’s National  Soccer Team and Major League Soccer filed a joint amicus brief with the Indiana Supreme Court in support of the former college players, arguing that the fantasy contests are “games, not a reference source.”

“They differ substantially from products that courts have previously found exempt as products designed to promote ‘the free dissemination of information’ about newsworthy matters of public interest,” the brief states.

The case made its way to the Seventh Circuit, but the Chicago-based appeals court punted it back to the Indiana Supreme Court in March.

Last month, the Indiana Supreme Court ruled against the players, finding that fantasy sports websites do not violate the state’s publicity-rights law by using the names and pictures of college athletes without their consent because that information is “newsworthy.”

Justice Steven David authored the 13-page opinion and wrote that the websites’ “use of players’ names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation.”

On Thursday, the Seventh Circuit issued its own four-page opinion in the case saying that the Indiana Supreme Court’s ruling settled the matter, and denying the players’ request for a remand.

“[Plaintiffs] want a remand so that they can argue that the defendants’ entire business model is criminal and that the state judiciary would not apply the statutory ‘newsworthy value’ exception to criminal activities,” U.S. Circuit Judge Frank Easterbrook said, writing for the three-judge panel. “That is not a question for the district court, however; it was a question for the Indiana Supreme Court, which could have articulated such an exception but did not.”

U.S. Circuit Judges William Bauer and Illana Rovner joined the opinion.

The state high court said its decision did not foreclose an inquiry into the use of college athletes’ likenesses in advertisements, which might make the public think that the athletes are endorsing a product, but the players did not raise this issue before the Seventh Circuit.

“Because plaintiffs have not tried to take advantage of the opening the state judiciary left them under the right-of-publicity statute, this civil suit is over,” Easterbrook said.

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