I n May 2016, a class of former college athletes sued FanDuel and DraftKings, alleging that the sites wrongfully profited from their likenesses. Relying on Indiana’s right of publicity statutethe former college athletes argued that FanDuel and DraftKings violated their right to control the commercial use of their own identities. The case was dismissed in district court by U.S. District Judge Tanya Walton Pratt, stating that the sites’ commentary on players’ likely performance and estimated salaries fell within the newsworthiness and public interest exceptions of the Indiana statute.

The class appealed to the 7th Circuit. The players argue that the judge erred in applying free speech protections to DraftKings and FanDuel because their businesses are fundamentally illegal under Indiana law. Though FanDuel and DraftKings compared themselves to CBS and ESPN in the briefs filed for this lawsuit, the players argue that these websites have actually likened themselves to casinos. Furthermore, the players argue that their names, images and personas are essential to the operation of gambling on fantasy sports, and therefore they “functioned as the cards” in the websites’ online casinos. Therefore, the commentary that FanDuel and DraftKings have supplied for these players, as well as the estimated salaries, are purely commercial and have no news value.

In response, FanDuel and DraftKings have argued that newsworthiness has nothing to do with the nature of the disseminator, or even the purpose behind the dissemination. Rather, they argue that newsworthiness is only about the content itself and that since college athletes’ performance statistics are widely read and discussed by fans, the content hosted on their site should be considered newsworthy.

Last Tuesday, the players filed a response arguing that because DraftKings and FanDuel allow their members to gamble through fantasy sports leagues, these sites are profiting off the players’ likenesses without their permission. Furthermore, they cited a recent Seventh Circuit case which held that the use of Michael Jordan’s likeness in an ad congratulating his induction into the Basketball Hall of Fame was a violation of Illinois’ right to publicity law. Because this ad was hanging over a local grocery store, the court found that it enhanced the store’s brand and commercial standing, without the permission of Michael Jordan.

The players further argue that Indiana and Illinois’ right to publicity laws are functionally the same, and that FanDuel and DraftKings have “made a far more transparent and direct commercial proposition.” These websites facilitate gambling based on player profiles, that they then accepted fees for, generating profit off of the players’ likenesses.

Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

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