Online Betting and The Right to Publicity: The Indiana Supreme Court Rules Against Former Athletes

December 21, 2018

The Indiana Supreme Court recently ruled in Daniels v. FanDuel that daily fantasy sports (DFS) sites can use “the names and statistics of college football players without [their] consent and compensation.” DFS sites facilitate in game wagering, “a popular form of betting that involves teams and individual players”. A football bettor, for example, could wager during a game on whether a specific receiver is going to catch a touchdown.

The plaintiffs in the case were former Indiana University football player Nick Stoner and two former players from Northern Illinois. The former NCAA athletes argued that the defendants, FanDuel and DraftKings, were violating Indiana’s “right to publicity” laws by using the names, pictures, and statistics of college athletes in order to facilitate in game betting between their users. In turn, R. Stanton Dodge, DraftKings’ chief legal officer, issued a statement saying “sports statistics – and the ability for all fans to freely access them – have always been at the center of the American sports fan experience.”

…fantasy sports operators…do not violate the Indiana right to publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within… an exception to the statue.

Indiana’s right to publicity statute criminalizes the unauthorized use of a person’s name, image, likeness, or other unequivocal aspect of one’s identity “without having obtained previous written consent to do so.” The Indiana Supreme Court unanimously held that the defendants were not violating the plaintiffs’ right to publicity. Justice Steven David delivered the court’s opinion: “fantasy sports operators…do not violate the Indiana right to publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of ‘material that has newsworthy value,’ an exception to the statue.” In short, Justice David and the other justices of the Indiana Supreme Court did not find a difference between the information on the defendants’ websites and “the publication of the same information in newspapers and websites across the nation.”

The ruling is a “big setback” for athletes as legal sports betting continues to expand nationally. With in-game sports betting becoming more prominent, sports leagues and players’ unions “are seeking legislative control” over the information that FanDuel and DraftKings are currently freely using. Sports leagues and players’ unions are trying to gain a slice of the pie when it comes to the profits that DFS sites are generating. However, for now, the information that DFS sites rely on “is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game.”            

The plaintiffs may choose to appeal the Indiana Supreme Court’s decision to the Seventh Circuit, though, the Seventh Circuit “will certainly use [Daniels v. FanDuel] to inform” their own decision, which makes it “close to a foregone conclusion” that Justice David’s ruling will stand. Initially, the plaintiffs “filed suit in a state court,” but the defendants successfully moved the case to federal court. The federal court in Indianapolis dismissed the case because they believed the information in question was covered by the statute’s newsworthiness exception. The plaintiffs appealed to the Seventh Circuit, where the case was “kicked down” to the Indiana Supreme Court due to a lack of precedent cases on the matter.