When you place a bet on a football game, you’re just gambling on the outcome of a competition between two teams, each with dozens of players on their roster. But when you play fantasy football, you’re effectively using each player in your lineup like an individual game piece in a contest to beat another fantasy team. And a pair of new lawsuits allege that DraftKings and FanDuel are breaking the law by profiting off college athletes who have become unwitting pawns in other player’s games.
The complaints [DraftKings PDF; FanDuel PDF], both filed yesterday in a federal court in Illinois by former Northern Illinois University running back Akeem Daniels, allege that the two daily fantasy sports [DFS] sites unjustly enriched themselves on the backs of Daniels and other amateur athletes.
“Through a comprehensive advertising campaign and in its daily fantasy college football and basketball contests, [DraftKings and FanDuel] routinely use the names and likenesses of these college players to promote Defendant’s commercial enterprise, amassing millions of dollars in revenues from entry fees, without the athletes’ authorization,” reads the lawsuit.
While Daniels’ personal interest in this lawsuit involves his time as a football player, the complaint also takes issue with the sites’ use of college basketball players in their daily fantasy contests.
There are a lot of similarities between this suit and a recent case brought by former college athletes against the NCAA and video game giant EA, which used images and stats for college players in its NCAA-themed series of games. EA ultimately settled with the players, and the court ultimately sided with the players.
One possibly important difference between these cases is that the NCAA video games used stats and apparent likenesses of real players but not their actual identities. On DraftKings and FanDuel, you’re not playing with a fictional character based heavily on a real athlete; your team is made up of the actual athletes playing in real-life games.
When a player enters a DFS contest, they are given virtual currency to spend on “salaries” for real-life athletes (who are not allowed to receive actual salaries). Fantasy players must come in under the salary cap set by the site, which also determines the worth of each available athlete on any given day. There are also numerous experts who opine on whether a player is worth investing in for the day.
“To induce people to buy into the games, Defendant also promotes the success customers will have if they follow Defendant’s recommendations, again using players’ names and likenesses in the marketing, without permission,” reads the complaint.
Additionally, these college players’ names and likeness are being used in advertising and marketing, without their permission and without any compensation.
Daniels contends that the sites’ use of college players has harmed them by “putting them in an unwanted state of fear and concern of the risk of being contacted by speculators who have a financial interest” in their in-game performance. In short, he’s saying that players are worried about being pressured into cheating, game-fixing, or point-shaving.
“By creating a class of millions of speculators in the U.S. whose financial fortunes in the Defendant’s virtual stock market rise and fall in direct proportion with the [athletes’] endeavors, Defendant has immeasurably altered the college football and basketball environment,” reads the complaint.
The lawsuit, which seeks to represent at least 2,000 college athletes, alleges violations of the Lanham Act’s prohibition against false endorsement; Massachusetts state law (for DraftKings), and New York state law (for FanDuel) forbidding unauthorized likeness; and unjust enrichment.
It asks the court for unspecified damages, and for “disgorgement of all gross profits earned by Defendant from its operation of its daily fantasy sports contests using Plaintiff’s and Class members’ names and/or likenesses.”
We’ve reached to both DraftKings and FanDuel for comment and will update if we hear anything back.
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