DraftKings, FanDuel Victory in Indiana Supreme Court Has Sports Betting Implications
By Brett Smiley | Published: October 24, 2018 at 6:41 pmThe Indiana Supreme Court on Wednesday issued a decision in favor of DraftKings and FanDuel in a case brought by three former collegiate football players, who argued that the daily fantasy sports operators violated the players’ “right of publicity” under Indiana law.
Indiana’s highest court found that the DFS operators (and now sportsbook operators in some states) committed no such violation, because their use of player data, statistics and names falls within an exception to the rule, because that information falls within the meaning of “material that has newsworthy value,” the court writes. It made no difference that DraftKings and FanDuel were using the stats and information commercially — in contests requiring entry fees and awarding cash prizes.
The court made it clear it was answering only a limited question based on the set of facts presented. That said, the net effect of this ruling, which leaned on precedent from the Eighth Circuit Court of Appeals, may streak into the national conversation about data within the context of legal sports wagering.
Indiana Supreme Court Decision on Data, Favoring DraftKings and FanDuel, Is Relevant to the Conversations on Sports Betting Expansion
Take a look at these key paragraphs from the ruling:
Considering the arguments presented in this case, Defendants’ use of players’ names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation. We agree that, “it would be strange law that a person would not have a first amendment right to use information that is available to everyone.” C.B.C. Distribution and Marketing, Inc. v. Major League Baseball, 505 F.3d 818, 823 (8th Cir. 2007).
This information is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game. On the contrary, fantasy sports operators use factual data combined with a significant, creative component that allows consumers to interact with the data in a unique way. Although fictional salary values are assigned to players, this does not change the function of the underlying data. It is difficult to find that the use of this otherwise publicly available information is somehow drastically different such that it should be placed outside the definition of “newsworthy.”
In fewer words: Newsworthy data or information does not lose its essential newsworthy character even where it’s used within a commercial product or contest.
This Indiana ruling will not dictate the outcome of the battle over “official league data” — in Indiana or New York or elsewhere — but it does help further cement courts’ interpretations of what data can be copyrighted, controlled and commodified.
For those just joining us, the expansion of legal sports wagering has seen several of the major professional sports leagues submit their frameworks and wish lists for state-level legislation.
The most controversial request has been the NBA and MLB’s (and not the NFL or NCAA’s) request for “compensation” in the form of a “royalty” or “integrity fees” — a direct percentage of all wagers.
Officials for MLB and the NBA have steadfastly maintained during hearings that “without sports, there is no sports betting.” (This is true, leaving them the possibility among others to take their balls and go home.)
Most lawmakers have not received the request for compensation well.
But they have been somewhat more receptive to the leagues’ argument that data produced by leagues, or their third parties, should be the only source of statistical data that sportsbooks may use to grade wagers.
The leagues are attempting to sway lawmakers by convincing them that data from any other source might allow bettors or athletes to manipulate wagers or games in such a way that would create an existential crisis to a league. “In-play” or “in-game” wagers, while touted by NBA commissioner Adam Silver as a great way to engage fans throughout games, is also being held out by the NBA as the greatest threat to the integrity of the games. For a multitude of reasons that would take too long to explore in this article, that’s a dishonest scare tactic.
So while the Indiana ruling is limited by jurisdiction and scope, it’s a good reminder for Indiana lawmakers, and their neighbors in Illinois, who likewise are skeptical of the leagues’ requests, and others around the country, that players and leagues do not have an exclusive right to the information from games that we all watch or read about…
… whether we’re seeing the score on a fantasy sports application, on ESPN.com or on a live betting screen.
