For many years, it was understood that college athletes retained little, if any, right to their likenesses while they fell under the pseudo-legal "student athlete" distinction. The NCAA was free to use player and school names and images to advertise single games, tournaments, and even video games. That was until Ed O'Bannon sued, and federal courts ruled the NCAA couldn't deny athletes of the monetary value of their names, images, and likenesses when used for commercial purposes.
While that ruling may have meant the end of beloved college sports video games (absent money flowing to the athletes themselves), it didn't mean that student athletes retained their rights of publicity in all arenas. Take, for example, daily fantasy gambling sites. The Seventh Circuit last week dismissed a lawsuit filed by college athletes against FanDuel and DraftKings, based on a prior Indiana Supreme Court ruling that the sites could use players' names and images without their consent.
Your Name Is Our News
Like pro football players before them, former Northern Illinois University football players Akeem Daniels and Cameron Stingily and former Indiana University football player Nicholas Stoner claimed daily fantasy sites used their likenesses without consent. Unlike those pro players, however, there were no league-wide marketing agreements already inked with one of the daily fantasy sites, and unlike perhaps other state laws, Indiana's right of publicity statute includes an exception for material of a "newsworthy value."
The "use of players' names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation," the Indiana Supreme Court ruled in October, broadly interpreting the exception. "This information is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game."
Is a Name an Endorsement?
The athletes begged to differ, but they begged in the wrong way, according to the Seventh Circuit. Rather than press the court to consider whether the use of their likenesses amounted to an endorsement of the fantasy games -- such that the use would negate the newsworthy exception -- they contended the daily fantasy sites violated Indiana criminal laws against gambling, and therefore the exception could not apply to criminal enterprises.
The Seventh Circuit dismissed that argument in a rather terse opinion:
We have nothing to say on the question whether the business of FanDuel or DraftKings violates Indiana's criminal laws. If a state prosecutor brings such charges, the answer will be for the state judiciary. Because plaintiffs have not tried to take advantage of the opening the state judiciary left them under the right-of publicity statute, this civil suit is over.
An important reminder that your choice of legal battlefield matters more than your weaponry.