In an order filed April 19 and publicly released yesterday, the Indiana Supreme Court has agreed to address the following issue:
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.
The case is set for an accelerated timeline, with a hearing scheduled for June 28 in Indianapolis.
The Indiana Supreme Court’s new order can be found here.
What led to this?
The ‘certified question’ posed to the Indiana Supreme Court was made by the US Court of Appeals for the Seventh Circuit, a federal appellate court one level below the US Supreme Court.
The case was originally brought by a group of former college athletes who argued that certain DFS contests violated Indiana’s right of publicity law. The plaintiff athletes also claimed that the fantasy contests offered by FanDuel and DraftKings were illegal.
The two leading DFS companies defended the lawsuit by arguing that their contests complied with Indiana law. FanDuel and DraftKings also cited the First Amendment in their defense.
Last month, the Seventh Circuit concluded that input from the Indiana Supreme Court was necessary to resolve the issues. The federal judges explained the rationale behind how they posed the ‘certified question:’
We have phrased this question in general terms so that the Supreme Court of Indiana may consider any matters it deems relevant—not only the statutory text but also, for example, plaintiffs’ arguments about the legality of defendants’ fantasy games and the possibility that there is an extra‐ textual illegal‐activity exception to the provisions of Ind. Code §32‐36‐1‐1. The state judiciary should feel free to re‐phrase the question if it deems that step appropriate.
The Seventh Circuit’s full decision can be found here.
‘Friendly’ input requested
The Indiana Supreme Court is looking for insight beyond just the plaintiffs and defendants.
“The Court further invites participation of amici curiae, believing the question certified may be of wider interest,” wrote the Chief Justice of Indiana, Loretta H. Rush.
Amici curiae — a Latin term meaning ‘friend of the court’ — sometimes file briefs to supplement the legal arguments made by both sides.
Casinos, sports leagues, player unions, sports data companies and others could all opt to file amicus briefs in the case.
The case will proceed quickly.
Both sides must file briefs on or before May 18. Amicus briefs are due on May 18 too. Briefs responding to the other side are due June 9.
After oral argument on June 28, the Indiana Supreme Court will issue a written decision in the weeks or months that follow.