AKEEM DANIELS, CAMERON STINGILY, and NICHOLAS STONER v. FAND UEL , INC., and DRAFT KINGS, INC.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3051
A KEEM D ANIELS, C AMERON STINGILY, and N ICHOLAS STONER ,
Plaintiffs‐Appellants,
v.
FAND UEL , INC., and D RAFT KINGS, INC.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐cv‐01230‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
A RGUED FEBRUARY 22, 2018 — D ECIDED MARCH 7, 2018
____________________
Before BAUER , EASTERBROOK , and R OVNER , Circuit Judges.
EASTERBROOK , Circuit Judge. FanDuel and DraftKings
conduct online fantasy‐sports games. A participant pays an
entry fee and selects a roster, subject to a budget cap that
prevents every entrant from picking only the best players.
Results from real sports contests determine how each en‐
trant’s squads did—so, for example, a touchdown on the
field yields points for the fantasy teams that include the

-- 1 of 5 --

2 No. 17‐3051
player. The participants whose fantasy squads do best win
cash.
Plaintiffs in this suit under Indiana law are former col‐
lege football players whose names, pictures, and on‐field sta‐
tistics have been used by FanDuel and DraftKings without
their permission. They contend that Indiana’s right‐of‐
publicity statute, Ind. Code §32‐36‐1‐8, gives them control
over the commercial use of their names and data. But the
district court dismissed the complaint, relying on two ex‐
emptions:
The use of a personality’s name, voice, signature, photograph,
image, likeness, distinctive appearance, gestures, or mannerisms
in … [m]aterial that has political or newsworthy value. [Ind.
Code §32‐36‐1‐1(c)(1)(B).]
The use of a personality’s [name, voice, etc.] … in connection
with the broadcast or reporting of an event or a topic of general
or public interest. [Ind. Code §32‐36‐1‐1(c)(3).]
The judge ruled that on‐field sports performances and statis‐
tics are “newsworthy” and of “general or public interest”,
which means that FanDuel and DraftKings may use plain‐
tiffs’ names not only in fantasy games but also in advertis‐
ing. 2017 U.S. Dist. LEXIS 162563 (S.D. Ind. Sept. 29, 2017).
Plaintiffs maintain in this court that the district judge
misunderstood the scope of these exemptions—indeed,
erred even in asking what the exemptions mean. According
to plaintiffs, FanDuel and DraftKings are illegal gambling
enterprises to which none of the statutory exemptions ap‐
plies. Defendants reply that their operations are lawful and
that at all events none of the language in the right‐of‐
publicity statute makes anything turn on a question extrinsic
to the right‐of‐publicity law itself.

-- 2 of 5 --

No. 17‐3051 3
The district court’s opinion analyzes with care the ques‐
tion whether plaintiffs’ names and statistics are “newswor‐
thy” and of “general or public interest”. No one doubts that
television can show college football games and discuss
plaintiffs’ performances without their consent. But the stat‐
ute asks not whether a given name or performance is
“newsworthy” or of “public interest” but whether the name
and other details appear “in … [m]aterial that has … news‐
worthy value” or “in connection with the … reporting of an
event … of general or public interest” (emphasis added).
Plaintiffs’ names and details on FanDuel and DraftKings are
not necessarily “in” newsworthy “material” or a form of
“reporting”.
Because plaintiffs’ claim arises under state law, we turned
to Indiana’s judiciary to see what weight the state gives to
the words we italicized above, whether Indiana views paid
fantasy sports as unlawful gambling, and whether it treats
illegality as material to the right‐of‐publicity statute. We
found—nothing. As far as we can see, none of the language
in either §32‐36‐1‐1 or §32‐36‐1‐8 has ever been interpreted
by any state judge.
The parties tell us that we need not worry about this def‐
icit, because Indiana’s law is similar to right‐of‐publicity
statutes in other states. So we looked around and found—a
lot of federal decisions. Plaintiffs observe that producers of
video games such as Madden NFL have been required to ob‐
tain the consent of the players whose names, pictures, and
statistics are used in those games, and they contend that the
same should hold for online fantasy‐sports games. But the
decision about Madden NFL concerns California’s statute
about strategic litigation rather than Indiana’s right‐of‐

-- 3 of 5 --

4 No. 17‐3051
publicity statute, and it was rendered by a federal court. Da‐
vis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015). A relat‐
ed decision, In re NCAA Student‐Athlete Name & Likeness Li‐
censing Litigation, 724 F.3d 1268 (9th Cir. 2013), discusses Cal‐
ifornia’s strategic‐litigation law and the First Amendment as
defenses to right‐of‐publicity claims but does not interpret
any particular state’s right‐of‐publicity statute—not even In‐
diana’s, though the NCAA is based in Indianapolis. Then
there is Baltimore Orioles, Inc. v. Major League Baseball Players
Ass’n, 805 F.2d 663 (7th Cir. 1986), which holds that federal
copyright law preempts some right‐of‐publicity claims un‐
der Illinois law. On the way to that conclusion, we stated that
marketing a game based on a player’s statistics transgresses
a non‐preempted common‐law right of publicity. Id. at 676
n.24. For that we relied on decisions of the Second Circuit,
the Third Circuit, the Eighth Circuit, and a district judge in
Minnesota. None of these decisions reflects any state judge’s
effort to interpret a statute similar to Indiana’s. We don’t say
that all right‐of‐publicity cases about sports have been de‐
cided by federal judges, but decisions by state judges are ra‐
re—see, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App.
4th 400 (2001)—and none involves Indiana’s law or a statute
materially identical to Indiana’s.
A federal court’s task under Erie R.R. v. Tompkins, 304 U.S.
64 (1938), and the Rules of Decision Act, 28 U.S.C. §1652, is
to interpret Indiana law as the Supreme Court of Indiana
would. The absence of precedent from Indiana and the
dearth of precedent from other states make this difficult.
When state law is easy to parse, certification is unnecessary
even when state judges have not considered a question. But
we do not think that the exemptions in Ind. Code §32‐36‐1‐1
can be understood without knowing what the state’s judici‐

-- 4 of 5 --

No. 17‐3051 5
ary makes of phrases such as “in … [m]aterial that has …
newsworthy value” or “in connection with the … reporting of
an event … of general or public interest” (emphasis added),
which leave their meaning ambiguous.
We therefore certify this question to the Supreme Court
of Indiana, under Indiana Rule of Appellate Procedure 64:
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.
We have phrased this question in general terms so that the
Supreme Court of Indiana may consider any matters it
deems relevant—not only the statutory text but also, for ex‐
ample, plaintiffs’ arguments about the legality of defendants’
fantasy games and the possibility that there is an extra‐
textual illegal‐activity exception to the provisions of Ind.
Code §32‐36‐1‐1. The state judiciary should feel free to re‐
phrase the question if it deems that step appropriate.
We appreciate the possibility that the answer to the ques‐
tion we have framed may not end this case. Defendants say
that the Constitution supersedes any right of publicity that
Indiana may recognize. It would be inappropriate for us to
decide that question, however, without knowing exactly
what it is that state law provides. Otherwise we are at risk of
issuing an advisory opinion.
The Clerk of the Seventh Circuit will transmit to the Su‐
preme Court of Indiana copies of the appellate briefs and
record in this case.

-- 5 of 5 --