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Court Takes a Time-Out for a Question in Fantasy Sports Case

By William Vogeler, Esq. | Last updated on

Judge Frank Easterbrook, reviewing the law on fantasy sports and publicity rights, punted.

Writing for the U.S. Seventh Circuit Court of Appeals, Easterbrook asked the Indiana Supreme Court to interpret a state statute on publicity rights. He said there is no clear law on the subject.

The case depends on whether Indiana views paid fantasy sports as illegal gambling, and whether it treats illegality as material to the right-of-publicity. In Daniels v. FanDuel, Inc., the appeals court told the state supreme court to figure it out.


Indiana Code Section 32-36-1-8 defines a person's right of publicity, such as use of a name or image, for commercial purposes. The plaintiffs in the case, former college football players, allege the defendants used their names, pictures and statistical information without permission.

But a trial judge dismissed their complaint based on exceptions for "newsworthy" information or "an event or topic of general public interest." The judge said that on-field sports performances and statistics qualified for the exceptions.

On appeal, the Seventh Circuit looked for Indiana cases for guidance on the meaning of the statute. "We found -- nothing," Easterbrook wrote for the panel.

They said that no judge has written about the code sections. "As far as we can see, none of the language in either Section 32-36-1 or Section 32-36-1-8 has ever been interpreted by any state judge," they said.

Fantasy Leagues

The appeals court posed the question to the state supreme court. It is "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."

In the meantime, the defendants stopped using college teams in their fantasy sports leagues. Their websites allow players to build virtual teams from different leagues.

If their teams win, they can convert their points to cash prizes. In an agreement with the National Collegiate Athletic Association, FanDuel and DraftKings discontinued college sports in their fantasy leagues.

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