Daniels v. Fanduel, Inc., No. 17-3051 (7th Cir. 2018)Annotate this Case
FanDuel and DraftKings conduct online fantasy‐sports games. Participants pay an entry fee and select a roster, subject to a budget cap that prevents every entrant from picking only the best players. Results from real sports contests determine how each squad earns points to win cash. Former college football players whose names, pictures, and statistics have been used without their permission sued, claiming that Indiana’s right-of-publicity statute, Code 32‐36‐1‐8, gives them control over the commercial use of their names and data. The district court dismissed the complaint, relying on exemptions for the use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms "in" material “that has political or newsworthy value” or “in connection with the broadcast or reporting of an event or a topic of general or public interest." The Seventh Circuit certified the question to the Supreme Court of Indiana: 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. Plaintiffs’ details on the websites are not necessarily “in” newsworthy “material” or a form of “reporting” and there is no state law precedent interpreting a statute similar to Indiana’s. The Supreme Court of Indiana may consider not only the statutory text but also plaintiffs’ arguments about the legality of defendants’ fantasy games and the possibility of an extra-textual illegal‐activity exception.
The court issued a subsequent related opinion or order on November 29, 2018.