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In the 13-page decision, justices sided unanimously with the daily fantasy sports sites listed as defendants. The last line succinctly explains the court’s conclusion in the fantasy sports lawsuit:
We conclude that Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy sports operators’ use of college players’ names, pictures, and statistics for online fantasy contests.
You can read the full opinion here.
DraftKings chief legal officer R. Stanton Dodge provided Legal Sports Report with a statement on the ruling:
Sports statistics —and the ability for all fans to freely access them—have always been at the center of the American sports fan experience. As previous generations engaged with statistics by reviewing box scores and batting leaders in the newspaper, the modern sports fan engages with statistics by and through playing fantasy sports contests. We have maintained, and are pleased that the Indiana Supreme Court agrees, that sports fans engaging with statistics online in fantasy sports contests does not violate the publicity rights of athletes under Indiana law.
Short-titled Daniels v. FanDuel, the fantasy sports lawsuit centers on the “right to publicity” section of Indiana law. Under that statute, nobody can use “an aspect of a personality’s right of publicity for a commercial purpose … without having obtained previous written consent” to do so. Protections extend 100 years beyond death.
Three former college football players argued that DFS operators using their names, pictures and statistics were violating that law. They filed suit, and the case wound up in US District Court.
DraftKings and FanDuel moved to dismiss, arguing that usage fell under specific exemptions in the cited law. In Indiana, the right to publicity excludes information that is of “public interest” or “newsworthy value” to another party. The disagreement brushes right up against the First Amendment too.
The court granted the motion to dismiss in September 2017, and the plaintiffs took the case to the Seventh Circuit Court of Appeals.
To oversimplify a bit, the Seventh Circuit said that there wasn’t enough precedent at the state level to make an informed ruling. It essentially kicked the fantasy sports lawsuit to the Indiana justices to help establish that precedent.
Here is the prompt the appellate court provided in the form of a Certified Question:
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 interest of expedience, the Indiana Supreme Court declined to examine whether or not the information was of public interest. Instead, it focused on the “newsworthy value” exemption to the statute in question.
According to the court, DFS contests meet that exemption. Justice Steven David penned the unanimous opinion:
In short, we answer this question narrowly and find online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.
In forming his opinion, David considered the primary testimony along with amicus curiae briefs on both sides of the issue. He also relied heavily on existing case law concerning the use of similar data.
Wednesday’s decision doesn’t directly establish an outcome in the fantasy sports lawsuit. While the appellate court will certainly use that decision to inform its own, the case remains active pending resolution.
Considering the sudden new precedent, though, the result seems close to a foregone conclusion. It’s now up to the plaintiffs to determine whether or not to proceed.
The decision might end up having an impact on the conversation surrounding sports betting too.
Indiana is one of many states considering legislation, with the matter recently garnering a fresh discussion in the statehouse. DraftKings Sportsbook and FanDuel Sportsbook are carrying the two DFS heavyweights into the emerging vertical with steam.
As holds true in nearly every jurisdiction, sports leagues and players’ unions are seeking legislative control over the same type of information used in DFS. Existing case law is somewhat split on the issue, so add this result in the “against” column.
As David wrote:
We recognize at the onset that our decision will carry considerable weight not only with respect to these parties, but for other potential right of publicity litigants in our state courts.