NFL Players Sue FanDuel for its Fantasy Football Game
By Jennifer E. RothmanOctober 30, 2015
Pierre Garcon and other NFL Players filed suit today in federal district court in Maryland claiming that their names and likenesses were misapproriated in FanDuel's fantasy football game. The complaint includes both right of publicity and false endorsement claims. No question that here is another looming First Amendment collision with the right of publicity. The Eighth Circuit settled this as to fantasy sports teams in that circuit -- no doubt one of many reasons to file in Maryland. In C.B.C. Distrib. & Mktg., Inc. v. MLB Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), the Eighth Circuit held that the First Amendment protected the use of players' names and statistics in a fantasy baseball game. Although the use of likenesses should not change things as a First Amendment matter, if FanDuel used more than it needed of the players' identities for the fantasy games to work, a court might point to that to distinguish the use from that in C.B.C. Additionally, not all circuits use the same balancing approach as the Eighth Circuit. This case might not turn out so well for FanDuel under a transformative use or predominant purpose test. This is the quagmire created by the recent decisions out of the Third and Ninth Circuits, in Davis, Hart, and Keller, that fantasy sports videogames are not protected by the First Amendment from right of publicity claims, at least when the games use similar physical characteristics as real players and game statistics of those players. (Note that there is a chance that the Supreme Court will grant review in Davis and reconsider those holdings in the videogame cases.) Hopefully, any decision will agree with C.B.C. and its holding that the use of public domain information about players should be protected as a First Amendment matter in the context of fantasy sports.