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A federal judge granted a motion to dismiss in a class-action lawsuit started by three college athletes in 2016 about the use of their likenesses by the DFS operators.
The case in question was filed in Indiana court at the start of 2016. Former Northern Illinois University football players Akeem Daniels and Cameron Stingily and former Indiana University football player Nicholas Stoner led the suit.
In their claim, they accused the top two DFS sites of using their names and likenesses unlawfully to generate revenue and asked for $5 million in damages.
At the time, DraftKings and FanDuel offered contests based on college football and basketball. Users at the sites could select players — including the plaintiffs — from real-world college games to be a part of users’ fantasy rosters. (DraftKings and FanDuel would discontinue their college contests a few months later as part of an agreement with the NCAA.)
The judge in the case, Tanya Pratt of the US District Court, Southern District of Indiana, summed up the case thusly:
Plaintiffs allege that FanDuel and DraftKings used their names and likenesses in operating and promoting online fantasy sports contests without Plaintiffs’ consent, and that doing so was a violation of their right of publicity under Indiana law.
Defendants argue that Plaintiffs have not stated a claim upon which relief can be granted, because a series of statutory exceptions, the First Amendment to the United States Constitution, and federal copyright law all shield Defendants from liability under Indiana’s right-of-publicity statute.
More backstory on the case here.
Pratt on Friday dismissed the case saying that “statutory exceptions” to Indiana code remove “Defendants conduct from coverage under Indiana’s right of publicity statute.” Or, is less lawyerly talk, DraftKings and FanDuel were not violating the law by using the players’ likenesses.
The court did not dismiss the case on First Amendment grounds, however. FanDuel and DraftKings argued that “in addition to the statutory exemptions, the use of Plaintiffs’ names and likenesses is speech protected by the First Amendment.” The court said this was not a valid argument at the stage of considering a motion to dismiss.
You can see the entire order here. The motion to dismiss could still be appealed to the US Court of Appeals for the Seventh Circuit.