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

Three former college football players contend that online fantasy-sports games violate their statutory right of publicity under Indiana law. The proprietors of these games reply that two exceptions, Ind. Code §32-36-1-1(c)(1)(B), (c)(3), permit them to use players’ names, likenesses, and statistics without compensation. The district court, agreeing with that argument, dismissed the suit on the pleadings. 2017 2017 U.S. Dist. LEXIS 162563 at *6-25 (S.D. Ind. Sept. 29, 2017). We certified this question to the Indiana Supreme Court:

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. The state court’s answer to the certified question did not say, or imply, that there is an extra-textual exception for gambling. Nor did the Indiana Supreme Court suggest that the defendants’ activities violate the state’s anti-gambling laws.

What the state court did hold is that the use of the plaintiffs’ names, pictures, and statistics comes within the statutory exception for material of “newsworthy value”. It suggested one possible exclusion from this exception: using the plaintiffs’ names (etc.) in a way that implied their endorsement of the defendants’ games. Plaintiffs do not ask us to remand so that the district court can explore that subject. Instead they want a remand so that they can argue that the defendants’ entire business model is criminal and that the state judiciary would not apply the statutory “newsworthy value” exception to criminal activities. That is not a question for the district court, however; it was a question for the Indiana Supreme Court, which could have articulated such an exception but did not.

We have nothing to say on the question whether the business of FanDuel or DraftKings violates Indiana’s criminal laws. If a state prosecutor brings such charges, the answer will be for the state judiciary. Because plaintiffs have not tried to take advantage of the opening the state judiciary left them under the right-of-publicity statute, this civil suit is over.

Affirmed
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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.