Rudy Telscher, the St. Louis-based attorney who a decade ago led two successful legal fights to permit the unlicensed use of player names and statistics in fantasy sports, always had a feeling the issue would somehow resurface.
Telscher, previously representing CDM Sports and CBS Interactive, prevailed against MLB Advanced Media and the MLB Players Association and then the NFL Players Association for that open use of data in commercial fantasy games. Those wins, largely achieved on First Amendment grounds, in turn helped fuel a massive nationwide increase in fan interest and participation in fantasy sports.
Telscher now represents the Fantasy Sports Trade Association, which recently filed an amicus brief in a case in Indiana against DraftKings and FanDuel that revisits many of the same arguments.
“I was wondering when and if somebody would try to take a different position in a different circuit in the hopes of a different result,” said Telscher. “But fantasy sports are about as rich a First Amendment area as you can get.”
A trio of ex-college football players led by former Northern Illinois running back Akeem Daniels, however, have taken the opposite position. In 2016 they sued DraftKings and FanDuel, arguing that the companies’ use of players’ names and likenesses violate Indiana state right-of-publicity laws. The case is now before the Indiana Supreme Court after having reached the Seventh Circuit of the U.S. Court of Appeals before being sent back, with oral arguments scheduled for late next month.
That circuit is different than the Eighth Circuit where the CDM Sports and CBS Interactive cases were heard last decade.
Fantasy sports are about as rich a First Amendment area as you can get.
And once again, pro sports unions have taken a prominent position in the fight. The MLBPA, NFLPA, National Basketball Players Association, NHL Players Association, MLS Players Association, Women’s National Basketball Players Association and the U.S. Women’s National Team Players Association jointly filed an amicus brief in the case, arguing that there is no inherent news value or First Amendment argument in the daily fantasy companies’ activities.
“Because defendants’ fantasy sports games do not function as sources of newsworthy information or as vehicles to report upon matters of public interest, but are simply games to promote competition for prize money, their uses of plaintiffs’ identities fall outside the statutory exemptions,” the unions’ brief reads in part.
DraftKings and FanDuel have continued to make their arguments primarily along First Amendment grounds. Earlier this month both received support from the FSTA’s own brief in the case written in part by Telscher.
“Fantasy sports operators do not use players’ names or personas to endorse a product or set themselves apart from the competition,” the FSTA’s brief reads. “The issue here is fantasy sports providers’ right to reference publicly available news and sports statistics generally.”
In the prior CDM Sports case, MLBAM and the MLBPA unsuccessfully sought to have the U.S. Supreme Court hear the dispute. If the plaintiffs in the Indiana case were to succeed, that could help set up contradictory appellate rulings that would potentially be more of interest to the nation’s highest court.
Like before, the economic stakes run high in the current fantasy legal fight and will likely help determine the terms of licensing structures around the industry.
“If the Seventh Circuit went a different direction and the players associations saw a glimmer of hope they could monopolize this industry, I would expect them to head down a similar path,” Telscher said.