Fantasy sports are not only a favorite pastime of many sports enthusiasts, but now these popular games have grown into a multi-billion dollar industry, with hundreds of millions of dollars being wagered on these games every week. Online fantasy sports platforms allow fans of popular sports leagues to draft real-life players onto imaginary teams. The various platforms then convert the players’ actual game performance statistics into points for their respective fantasy team owners, which these fans then use to compete against one another for cash or other prizes.
Fantasy football sites receive over $11 billion in entry fees alone which, before even factoring in advertising dollars, is enough to set the derivative sports market’s annual revenue at an amount greater than that of the NFL (i.e. the actual sport itself). Not surprisingly, such successful profit margins have brought much delight to venture capitalists as well, who have invested over $300 million in top fantasy companies like DraftKings and FanDuel.
However, the meteoric rise in success of the fantasy sports industry has not been without its share of conflict. While state Attorney General’s seek to shut down these sites based on their gambling nature despite loopholes provided to them by federal law, other approaches to put them out of business or otherwise share the wealth have been pursued by pro athletes themselves as not every real-life player is enthusiastic about having their name and reputation tied to these gambling sites.
Recently, Pierre Garçon, a player on the NFL’s Washington Redskins, filed a class action lawsuit against the fantasy football site FanDuel. In his complaint, Garçon challenged the site’s use of his name, image, and likeness as an infringement on his publicity rights, and further alleged that the site engages in false endorsement in connection with a commercial activity.
Legal Issues In Fantasy Football
Because fantasy football teams are based on the performances of real players, a fantasy football site’s use of a player’s name, picture, and game statistics is essential to the site’s operations. Previous lawsuits involving fantasy baseball concerning the same issue have found that no “right publicity violation” as occurred as the statistical information is public record. And it has long been held that baseball cards with photos of players and statistics fall well within the “newsworthy” protections of the 1st Amendment.
However these holdings do not mean that NFL players (and other athletes) lose their right to control how their own images are utilized commercially. And individual players, the NFL Players Association and the NFL itself all strictly attempt to regulate and license the use of its players name and likeness in commercial settings.
However, big bucks are at stake here and the argument goes that the game statistics are news worthy and available for use by all, therefore the fantasy leagues can report on those statistics and reference the celebrity players that create those statistics. Yet, how can this be when other companies, pay millions of dollars to license athletes’ names and images to endorse their products and services?
Interestingly, FanDuels competitor, DraftKings has an express licensing agreement with the NFL and certain players. As such, DraftKings has player cooperation in its marketing.
The legal question is thus what is the extent to which FanDuel can display a player’s name, image, and statistics? Where does “nominal use” end and venture into rendering an uncompensated player a spokesperson for the company against his will.
The FanDuel Complaint
Garçon is effectively attempting to prevent FanDuel, and ultimately other similar companies, from profiting off of the unauthorized commercial use of players’ names and likenesses. While Garçon did not state a specific amount of damages he seeks in relief, one of his requests is that FanDuel disgorge its profits earned from promoting daily fantasy sports contests using NFL players’ names and likenesses.
In his lawsuit, Garçon also alleges that because he is a popular and well-known player, FanDuel’s use of his name and likeness in its advertising could lead consumers to believe that he endorses the site or is in some way associated with the company. As a result, Garçon argues that FanDuel has unjustly profited from his name and likeness.
To support his claims, Garçon points to a 28-minute infomercial that FanDuel ran nationally beginning in September of 2015. In the infomercial, which featured screenshots of the website and a scrolling ticker displaying the names of players and their positions, Garçon’s name is seen at least 53 times.
In addition, FanDuel has aired two other commercials which also feature Garçon’s name, team, and position. Garçon also points to FanDuel’s “recommended picks” feature of the site which highlights the successes a fantasy team owner could realize if he or she signed up for the site and drafted a player, such as Garçon, on their roster.
Could the Claims Succeed?
Garcon has the burden of needing to distinguish this case from existing case law from 2007. In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., a case involving Major League Baseball and the use of its players’ names and likenesses in connection with fantasy baseball products. In that case, the 8th Circuit Court of Appeals held that consumers are unlikely to believe that the mere inclusion by a fantasy baseball site of a particular player’s name in its advertising is an endorsement by that player of the site or its products. Rather, the court held that because the fantasy games depend on the inclusion of every player, regardless of star power, the use of any particular name(s) offered no commercial advantage, and thus there was no risk of consumer confusion that any one player was endorsing the product, and subsequently no false endorsement claim. While celebrities do have a right to control the authorized use of their image and name for commercial purposes, Garçon’s action has its challenges. His success hinges on his ability to show that FanDuel used his specific name in the advertisements is for a “commercial advantage,” verses certain First Amendment arguments that inclusion of his name is merely tied to the actual statistics and factual information by which the fantasy game is played and thus able to be referenced by the FanDuels.
It remains to be seen if other NFL players will join Garçon’s lawsuit, and if so, whether or not the Maryland judge will likely follow the reasoning of the 8th Circuit case.
With billions at stake, it is possible this case may provide further definition as to where the limits of a “fair use” defense end and damages for Right of Publicity claims begin.
While Pierce Law Group is not involved in this lawsuit, our firm regularly litigates right of publicity claims. Our entertainment attorneys can advise you on the best practices in regard to right of publicity issues.