Pierre Garcon, wide receiver for the Washington Redskins, has filed a class action lawsuit against the daily fantasy company, FanDuel. Whether the overall media correctly identifies it or not, this lawsuit is primarily a Right of Publicity claim.
Past lawsuits against fantasy sports providers generally have not been successful. Simply stated, prior cases have held that that publishing game statistics are not a commercial use, much in the same way that a newspaper reports on box scores without incurring liability. This tends to make sense as long as no one player is being singled out, and the use is confined to the statistical performances with every competing athlete being used (or capable of being used) in exactly the same manner. There is, of course, a difference between news reporting on game statistics the day after a game and operating a for-profit site that earns its profit from the players’ performances.
But the real fulcrum point may exist in the advertising and promotion for FanDuel. If a very small collection of players are appearing by name or otherwise in advertisements for a company, and if additional elements like dollar values of a given player or other elements specific to the daily fantasy operation are being added by that company, it quickly could take a different complexion.
Unlike DraftKings, which has authorization from the NFL Players Association, FanDuel apparently does not.