CHICAGO (CN) – The Seventh Circuit on Wednesday asked the Indiana Supreme Court for input on whether the state’s publicity-rights law allows fantasy sports websites to use college athletes’ names and pictures without permission.
Former Northern Illinois University football players Akeem Daniels and Cameron Stingily, joined by former Indiana University football player Nicholas Stoner, sued fantasy sports sites FanDuel and DraftKings last year for using their likenesses in advertising for the sites without their consent.
The players asked for $5 million in damages.
The defendant websites allow players to build virtual teams from varying athletic leagues. Players earn points based on athletes’ real-world statistics, which can be converted to cash prizes.
A couple months after the suit was filed, however, FanDuel and DraftKings discontinued their college contests as part of an agreement with the NCAA.
A federal judge dismissed the case last year, finding that Indiana’s right-of-publicity statute does not prohibit the sites’ use of the players’ names and likenesses.
On appeal, the Seventh Circuit certified a question about that law Wednesday to the Indiana Supreme Court.
U.S. Circuit Judge Frank Easterbrook wrote in a five-page opinion that there is no Indiana case law interpreting the statue in cases about sports, and there is a general dearth of decisions by state judges involving similar right-of-publicity laws in other states.
The Chicago-based appeals court asked the Indiana Supreme Court to determine “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 the contests, in advertising the contests, or both.”
Easterbrook acknowledged the possibility that the Indiana high court’s answer might not resolve the case on its own, because the fantasy sites also raise a First Amendment defense.
“Defendants say that the Constitution supersedes any right of publicity that Indiana may recognize,” Easterbrook wrote for a three-judge panel. “It would be inappropriate for us to decide that question, however, without knowing exactly what it is that state law provides.”