US daily fantasy sports heavyweights DraftKings and Fanduel have won a $5m class action lawsuit against three college football players over the use of the players likenesses in their DFS games.
Former northern Illinois University football players Akeem Daniels, Cameron Stingily and Nicholas Stoner accused the two DFS sites of using their names and likenesses unlawfully, filing a legal suit against the companies in 2016.
At the time of the filing, both DraftKings and FanDuel offered contests based on real world college football and basketball teams, however they would later discontinue their college-based DFS contests as part of an agreement with the NCAA in March 2016.
The players alleged that such usage violated the players’ right of publicity which is guaranteed under Indiana state law. The law concerned states that a “person may not use an aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for 100 years after the date of the personality’s death without having obtained previous written consent.”
In response, FanDuel and DraftKings asserted that the use of the player’s likenesses was exempt from the general regulations of the Indiana statute, under the First Amendment to the US Constitution and that US copyright law shielded them from liability.
Considering these arguments, US District Court judge for the southern district of Indiana, Tanya Pratt dismissed the first amendment claims by DraftKings and Fanduel but stated: “The Court has determined that at least two of the statutory exceptions to Ind. Code § 32- 36-1-8(a) apply, which removes Defendants conduct from coverage under Indiana’s right of publicity statute.“
“For the reasons explained in this Entry, the Defendants’ Motions to Dismiss, (Filing No. 26; Filing No. 28), are granted and Plaintiffs’ Motion for Leave to File Surreply (Filing No. 60) is denied as moot.”
Both Draftkings and Fanduel have declined to comment following the ruling.
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