NFL Player Files Suit Against FanDuel Over Likeness Rights

Legal Issues

from the fumble dept

As we were just talking about the recent consternation over daily fantasy football sites like FanDuel and DraftKings and whether they ought to be considered forms of gambling or games of skill, news recently broke about one player’s personal war with FanDuel over likeness rights. NFL player Pierre Garcon of the Washington Redskins has filed a federal suit against the daily fantasy company, alleging it used his name and likeness for commercial value, as well as alleging that FanDuel included images of Garcon in advertisements, falsely implying endorsement. There are details to unpack here, but you can see the filing for yourself here.

Those details I mentioned are all bad for Garcon’s suit. First, the Forbes link above notes that filing this case in Maryland is an odd choice, as Maryland doesn’t actually have a publicity rights statute. That means this is all going to boil down to common law rights, which puts a great deal of onus on Garcon to demonstrate the commercial value of his name and likeness, should it even get that far.

It isn’t going to get that far. As the article notes, the case law here is decidedly against Garcon’s claims.

Garcon’s name, image and likeness has been used in connection with statistics and to a very limited extent on certain TV and Internet advertisements. Such use is likely to be deemed nominal and for informational use only. To the extent that it is deemed to be an improper commercial use, it would be extremely difficult to determine damages. It should never get that far.

Publicity rights offer substantially broader protection than those laws preventing false endorsement, which are raised by Garcon in the second count of his Complaint. The first count deals with the misuse of his publicity rights. That leads to a review of an 8th Circuit U.S. Court of Appeals decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. from 2007.

And in that case, the court ruled that the use of player names and statistical information was not considered use for commercial advantage. That’s exactly the opposite of Garcon’s claim in his claim for publicity rights. Simply showing his name and accurate statistical information in a commercial doesn’t rise to the level of a publicity rights violation. And even if he got a court to buy that it was, previous rulings have indicated that First Amendment protections come into play here as well, which would likely win out over any nominal publicity rights violation such as this.

As for the claims of false endorsement, the claim, on its face, seems destined to fail. After all, his name and stats simply appearing in ads doesn’t even suggest that Garcon in any way endorses FanDuel. In fact, the only reason fantasy football can function is if all players are represented, so anyone viewing the ad and seeing Garcon’s name included as part of the game will realize that his is one name among all the rest of the players in the league. Complicating Garcon’s claim further is the fact that he did endorse FanDuel until recently.

Many have pointed out that Garcon previously endorsed FanDuel contests. As Daniel Roberts of Fortune wrote, Garcon “repeatedly shilled for FanDuel in the past.” Garcon promoted his own fantasy league on FanDuel’s platform with a unique link that likely provided him credit for clicks. If Garcon was signed to a contract with FanDuel that previously expired, then perhaps this could actually bolster Garcon’s claim against the company. It would allow Garcon to effectively argue that FanDuel contracted for his publicity rights and improperly continued to use them after expiration of the deal. Yet, that also assumes any such promotional arrangement included a grant of rights clause. Otherwise, FanDuel can easily argue that a promotional deal is just that and nothing more — there was never an effort to gain a license to be able to use Garcon’s name, image and likeness in a commercial endeavor.

That defense probably won’t even come into play due to the previously mentioned case law, however. It’s actually quite strange to see a player take on a fantasy football outfit this way — merely for using his name and stats to promote the product. Regardless, it doesn’t look like anyone expects this suit to survive for long.

Filed Under: daily fantasy sports, fantasy sports, pierre garcon, publicity rights, sports
Companies: fanduel