A proposed class of approximately 3,000 former college athletes recently filed an appeal in the Seventh Circuit against FanDuel and DraftKings. The players are reviving their proposed class action, claiming that FanDuel’s and DraftKings’ use of the players’ images on their websites does not fall within the newsworthy or public interest exceptions to Indiana’s right of publicity statute.

FanDuel and DraftKings used the players’ images, names, and statistics on their sites to operate their fantasy sports contests. According to the players, the companies wrongfully profited off of the use of their likeness without obtaining prior consent from the players.  Specifically, they argued that the players themselves were the very subject of the companies’ gambling operations and that the sites themselves could not have operated without using their likeness.  The players even compared themselves to playing cards in the FanDuel and DraftKings “online casinos.”

The case was previously dismissed in September 2017 in federal district court, whereby the judge broadly interpreted the newsworthy exception to Indiana’s right of publicity statute. The judge found the players’ likenesses, images and statistics fall with the newsworthiness exception under a broad interpretation of the exception combined with the huge media attention given the sports. In her dismissal, the judge broadly interpreted the exception to avoid creating any conflict with free speech protection under the Constitution.  However, in the recent filing to the Seventh Circuit, the players argue that the district court cannot apply free speech protection where the defendants’ businesses are fundamentally illegal under Indiana law.

The players also cited another Seventh Circuit decision involving the use of Michael Jordan’s likeness, where a local grocery store used an advertisement that congratulated the former Chicago Bulls player. In that case, the Seventh Circuit held that the store’s use of Jordan’s likeness violated Indiana’s right of publicity statute.  According to the players, FanDuel’s and DraftKings’ actions are even more egregious, since they assigned price tags to the players and accepted actual payments from gambling customers to “purchase” the players in their fantasy contests.

In their response, defendants FanDuel and DraftKings argue that newsworthiness should be determined by the content, not the disseminator of information, and that the players’ statistics are regularly analyzed and debated by sports fans. Accordingly, the defendants argue that use of the players’ likeness is both newsworthy and of public interest.

TAKEAWAY: If the court finds FanDuel’s and DraftKings’ use to be newsworthy or of the public interest, the result could open the door for other companies to make use of such exceptions and chip away at an individual’s control over the use of their likeness.