FanDuel’s growing list of legal woes got a little bit longer when Washington Redskins receiver Pierre Garçon filed a putative class-action lawsuit1 against the daily fantasy sports company on October 30. Garçon’s suit is one of the latest in a rough couple of months legally for the fantasy sports industry.2
In his complaint, Garçon alleges that FanDuel is misappropriating the names and likenesses of the most well-known offensive National Football League players to attract users and collect entry fees for its fantasy contests. Garçon claims that this practice deprives the players of the value of their publicity rights, which protect individuals from commercial exploitation of their names, images, and other aspects of their personas. The complaint also states that the use of NFL player photos on the customers’ final lineup card is a violation.
However, Garçon’s case is not without challenges. FanDuel issued a statement that said it believes the suit is without merit because of established law that fantasy operators may use player names and statistics for fantasy contests. The law to which FanDuel is referring is the Unlawful Internet Gambling Enforcement Act, which carves out an exception for “participation in any fantasy or simulation sports game.” The Maryland Court may also be influenced by a similar case heard eight years ago in which the Eighth Circuit held that Major League Baseball players do not have a publicity right in their name and statistical information when it comes to fantasy sports. The court reasoned that the First Amendment allows this practice because players’ names, statistics, and other aspects of their “personas” are readily available in the public domain. The MLB case is not direct precedent over Garçon’s case but it is persuasive authority.
Garçon's lawsuit attempts to work around the MLB case by alleging FanDuel is using the names and images of players in its actual advertisements, which is commercial speech. For example, Garçon states that in one 30-minute infomercial that began airing in September, his name alone appears more than 53 times. Garçon attempts to further distinguish the MLB case by alleging that the use of the players' names and images misleads consumers into thinking that the players actually endorse the site, in violation of the Lanham Act.
Garçon’s case is significant in that, if he prevails, Garçon and other class members would be entitled to recover at least some portion of FanDuel’s noteworthy—$3.5 million during one week in October—profits. And fantasy sports companies’ profits continue to grow, in part due to their increased advertising. During the first week of the 2015 NFL season, FanDuel and rival DraftKings spent a combined $31 million in ads, en route to making $60 million on entry fees that week. This recent explosion in popularity of fantasy sports companies means that it is unlikely that Garcon’s suit will be the last of their legal woes.
1Pierre Garçon v. FanDuel Inc., case no. 8:15-cv-03324, in the U.S. District Court for the District of Maryland.
2In October, the daily fantasy sports industry faced claims of possible insider trading. Next came claims that daily fantasy sports sites contain illegal sports gambling, resulting in some states banning FanDuel from accepting bets there. Daily fantasy sports companies were also sued in November by a technology company claiming infringement of two patents.
Photo by Erik Drost and available at Flickr Commons.