Statutory Interpretation

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7^th Circuit Court of Appeals

Case Name: Akeem Daniels, et al. v. FanDuel, Inc., et al.

Case No.: 17-3051

Officials: BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

Focus: Statutory Interpretation

FanDuel and DraftKings conduct online fantasy‐sports games. A participant pays an entry fee and selects a roster, subject to a budget cap that prevents every entrant from picking only the best players. Results from real sports contests determine how each entrant’s squads did—so, for example, a touchdown on the field yields points for the fantasy teams that include the player. The participants whose fantasy squads do best win cash.

Plaintiffs maintain in this court that the district judge misunderstood the scope of these exemptions—indeed, erred even in asking what the exemptions mean. According to plaintiffs, FanDuel and DraftKings are illegal gambling enterprises to which none of the statutory exemptions applies. Defendants reply that their operations are lawful and that at all events none of the language in the right‐of‐ publicity statute makes anything turn on a question extrinsic to the right‐of‐publicity law itself.

Because plaintiffs’ claim arises under state law, we turned to Indiana’s judiciary to see what weight the state gives to the words we italicized above, whether Indiana views paid fantasy sports as unlawful gambling, and whether it treats illegality as material to the right‐of‐publicity statute. We found—nothing. As far as we can see, none of the language in either §32‐36‐1‐1 or §32‐36‐1‐8 has ever been interpreted by any state judge.

We therefore certify this question to the Supreme Court of Indiana, under Indiana Rule of Appellate Procedure 64: Whether online fantasy‐sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both. We have phrased this question in general terms so that the Supreme Court of Indiana may consider any matters it deems relevant—not only the statutory text but also, for ex‐ ample, plaintiffs’ arguments about the legality of defendants’ fantasy games and the possibility that there is an extra‐ textual illegal‐activity exception to the provisions of Ind. Code §32‐36‐1‐1. The state judiciary should feel free to rephrase the question if it deems that step appropriate. We appreciate the possibility that the answer to the question we have framed may not end this case. Defendants say that the Constitution supersedes any right of publicity that Indiana may recognize. It would be inappropriate for us to decide that question, however, without knowing exactly what it is that state law provides. Otherwise we are at risk of issuing an advisory opinion. The Clerk of the Seventh Circuit will transmit to the Supreme Court of Indiana copies of the appellate briefs and record in this case.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.