Antitrust Law Daily Wrap Up, ADVERTISING NEWS: NFL player sues fantasy league operator for unauthorized use of identity, (Nov 2, 2015)

By Thomas Long, J.D.

Washington Redskins wide receiver Pierre Garçon has filed a putative class action lawsuit against fantasy sports game company FanDuel Inc., accusing FanDuel of unlawfully exploiting the popularity and accomplishments of National Football League players, without permission. According to Garçon, FanDuel routinely promotes its interactive online gaming enterprise by using the names and likenesses of NFL players in advertising and in its daily fantasy football contests. The complaint was filed in the federal district court in Baltimore (Garçon v. FanDuel Inc., October 30, 2015).

New York City-based FanDuel created and operates a series of interactive online simulation games connected to various professional sports, including NFL football. Customers of FanDuel’s daily fantasy football contests pay FanDuel an entry fee and are given virtual FanDuel currency to use to build a virtual team, using the names and statistics of real athletes. FanDuel customers compete against other customers in online games based on their virtual team members’ real-world performance, for cash prizes. The FanDuel experience is meant to simulate the roles of owner and general manager, allowing customers to operate a fantasy football franchise. The games are played via FanDuel’s website or its mobile platforms.

FanDuel uses a “salary cap” system through which a dollar amount is assigned to each player, based on that player’s performance and popularity. Unlike other fantasy leagues, FanDuel does not require customers to commit to a particular team for an entire NFL season. Rather, customers can “purchase” NFL players for daily fantasy teams, up to the salary cap. FanDuel releases “lineup cards” in each game selected by each customer after NFL games have started each Sunday. The complaint states that these lineup cards incorporate the photographs of the NFL players available for “purchase.”

Depending on the performance of the players on a customer’s team, the customer receives “fantasy points,” which determine the winner of the contest. According to the complaint, FanDuel’s daily fantasy football system means that the most popular NFL players are marketed the most and often “drafted” first. The most popular players tend to be the ones who are the most dependable sources of fantasy points. If a player underperforms or is injured, customers can adjust their rosters through trades with other game players, waiver acquisitions, or free agency. Customers can construct a different fantasy team each week and can choose a different game format, with a variety of options offered by FanDuel.

Garçon asserts that FanDuel’s commercial success depends on attracting customers to their web platform for daily fantasy games and getting them to purchase and play a few online fantasy football game each week. FanDuel directly capitalizes on NFL players’ popularity and performance, using the players’ names and likenesses, Garçon states. The gaming system is broadly advertised on television, radio, popular websites, and social media. FanDuel’s national TV campaigns use NFL players’ names to promote its fantasy sports contests. According to Garçon, there is “no reason” to use the names of NFL stars in ads other than to promote sales of FanDuel’s games.

Garçon further asserts that a 28-minute FanDuel infomercial, first aired in September 2015, prominently featured the phrase “paid advertisement,” while repeatedly using the names of Garçon and other NFL stars with the sole purpose of selling FanDuel’s games. Other stars mentioned by the complaint include Andrew Luck, Aaron Rodgers, Antonio Brown, Le’Veon Bell, Jamaal Charles, Greg Jennings, and Marshawn Lynch. Garçon’s name alone appeared 53 times in the infomercial, the complaint alleges. FanDuel also allegedly has aired other commercials using Garçon’s name thousands of times on national TV networks and on YouTube.

The names and likenesses of Garçon and other NFL players are valuable intangible property, the complaint states. None of the NFL players have consented to FanDuel’s use of their identities to promote FanDuel’s product. The regular use of Garçon’s name in advertising was likely to cause confusion as to Garçon’s endorsement, approval, or sponsorship of FanDuel’s games, Garçon contends. As a result of its promotional efforts, FanDuel allegedly generated nearly $57 million in revenue in 2014 and was so successful that it was able to award over half a billion dollars in cash prizes. In 2015, FanDuel is likely to beat last year’s revenue figures, according to the complaint.

The complaint tentatively defines the plaintiff class as “All National Football League (NFL) players on an NFL team roster since 2013 whose names and/or likenesses Defendant FanDuel used to operate or promote its fantasy sports products from January 1, 2013 through the present.”

The complaint includes counts for deprivation or misappropriation of Garçon’s and class members’ publicity rights, false endorsement in violation of 15 U.S.C. §1125(a), and unjust enrichment. Garçon seeks class certification; monetary damages, including exemplary damages for intentional publicity rights violations and disgorgement of FanDuel’s profits resulting from its unlawful activity; injunctive relief requiring FanDuel to refrain from future use of class members’ names and likenesses; and an award of costs and fees.

The case is No. 8:15-cv-03324-PJM.

Attorneys: Brian A. Glasser and Thanos Basdekis (Bailey & Glasser LLP) for Pierre Garçon.

Companies: FanDuel Inc.

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