A new daily fantasy sports class action lawsuit dropped late on Friday, as Washington Redskins wide receiver Pierre Garçon filed suit against FanDuel.
Asked about the suit, a FanDuel spokesperson told LSR: “We believe this suit is without merit. There is established law that fantasy operators may use player names and statistics for fantasy contests. FanDuel looks forward to continuing to operate our contests which sports fans everywhere have come to love. ”
The basics of Garçon’s lawsuit
Full text of the suit here.
The lawsuit was filed in the United States District Court of Maryland. The basic argument is that Garcon’s likeness is being used without his permission. From the filing:
In the operation and sale of online daily fantasy football gaming products, Defendant FanDuel knowingly and improperly exploits the popularity and accomplishments of current Washington Redskins wide receiver Pierre Garçon, along with all the other National Football League (“NFL”) players at offensive skilled positions. In addition, through a comprehensive advertising campaign and in its daily fantasy football contests, Defendant FanDuel routinely uses the names and likenesses of these NFL players to promote FanDuel’s commercial enterprise, collecting huge revenues from entry fees, without the authority of Mr. Garçon or the other NFL players.
You can read the entire filing here. Garçon is bringing it as a class action, meaning other players that appear on FanDuel’s website could join the lawsuit.
Garçon also issued a statement via his agent:
I am bringing this lawsuit against FanDuel for using my name, image, and likeness in both daily fantasy contests and through advertising on TV ads and infomercials. FanDuel has taken the liberty to engage in these actions without my consent and without proper licensing rights. As a result of these activities, FanDuel daily fantasy contests have shown increasing revenues leading to large profits. Therefore, on behalf of myself as well as any other players who are being treated unjustly, I chose to file a complaint.
Of course, FanDuel is not making “large profits”; no DFS operator is currently believed to be profitable.
Certainly the two largest operators — FanDuel and DraftKings — are not.
DraftKings, but not FanDuel?
FanDuel was the only DFS operator listed as a plaintiff. That, of course, means DraftKings was not targeted.
Why is that? More than likely, it has something to do with the deal recently struck between DraftKings and the NFL Players Association. Suing a company that has an active relationship with the players association would likely be a more complicated endeavor.
How is Garçon’s likeness alleged to have been used?
Like most DFS sites, pictures of players are used in the context of the platform. In commercials, Garçon’s name is used, but his picture is not:
The use of the names is mentioned specifically in the lawsuit:
As part of those campaigns, FanDuel intentionally capitalizes in their advertisements by repeatedly using the names of only the most well known NFL stars to promote the FanDuel game and drive traffic to their website to sell their online games. Of course, there is no reason to use the names of the NFL stars in the advertisements other than to promote sales of FanDuel’s online games
The suit also references the use of player names and likenesses within the FanDuel platform:
Similarly, on its FanDuel website, Defendant FanDuel prominently posts the Class members’ names and photographs and solicits potential users to purchase them for their FanDuel daily fantasy game football roster
Full text of the suit here.
Garçon appears to have previously promoted FanDuel on social media
The case is made more interesting by the fact that Garçon actually promoted FanDuel via social media last year:
A similar post appeared on Garçon’s Facebook page during the same period:
The Washington Redskins are one of numerous NFL teams that have deals in place with either FanDuel or DraftKings. It is not known if Garçon was compensated by FanDuel, or if that was something done via his team. Either way, it adds an interesting wrinkle.
Fact that Garçon used to promote FanDuel could actually help his case if he was paid. Demonstrates damages for right of publicity case.
— Darren Heitner (@DarrenHeitner) October 30, 2015
So, could this happen in other sports?
If it can happen in the NFL, it could presumably happen in other sports. It’s a little less complicated, perhaps, in the NFL, where the league does not have an overarching arrangement with an operator; the NBA, NHL and Major League Baseball all do.
If a player were to sue DraftKings or FanDuel in those cases, they would be suing their own league by proxy, in a way — they own equity stakes in the DFS companies. But, the case Garçon is using could theoretically be brought by any player in any other league. How much merit such a case would have is obviously as debatable as this one. More from Edelman:
If Garçon wins his lawsuit, it may create dangerous monopolies in #DFS by sport. Exclusive licensed providers could then easily raise rake
— Marc Edelman (@MarcEdelman) October 30, 2015
What lawyers think about the lawsuit
Attorney and Forbes writer Marc Edelman considered this issue in a 2012 paper (pages 42-44).
He notes the most relevant case law as “C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, in which the U.S. Court of Appeals for the Eighth Circuit held that the First Amendment trumps Major League Baseball players’ assignable right to publicity in their names and statistics.”
Another case, in another district, however, came to a different finding. According to Edelman’s paper, “Gridiron.com v. National Football Players Association, a case in which the U.S. District Court for the Southern District of Florida rejected the argument that a website operator may use players’ names and images for the purposes of selling football memorabilia and operating a fantasy sports game.”
Another lawyer in sports law also weighed in:
Unless Garçon can show a TV ad w/some blatant use of his image, it sounds like he has a real loser of a case
— Darren Heitner (@DarrenHeitner) October 30, 2015
Believe Garçon has much better chance of prevailing on use of likeness in TV ads. Case law not w/him on use of name in contests.
— Darren Heitner (@DarrenHeitner) October 30, 2015
Photo by Keith Allison used under license CC BY-SA 2.0.
