Pierre Garçon v. FanDuel: Will Plaintiff Score or Get Stopped Short of the Goal Line?

On the eve of Halloween, NFL wide receiver Pierre Garçon dished up quite a treat for FanDuel, the beleaguered fantasy sports company.  Garçon, on behalf of himself and other similarly-situated NFL football players, sued FanDuel in Maryland federal court claiming the fantasy sports company is violating the NFL players’ “rights of publicity.”  He also claimed that the use of his name and image violates the Lanham Act as consumers will be deceived into believing that Garçon and his NFL compatriots endorse or support FanDuel when, in fact, they apparently do not.

Within hours of the filing of the suit, FanDuel spokeswoman Emily Bass fired back.  “There is established law that fantasy operators may use player names and statistics for fantasy contests,” she said. She is right. At least in part.  There is case law on FanDuel’s side.  The seminal case is out of the U.S. Circuit Court of Appeals for the 8th Circuit, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.  That case certainly stands for the broad proposition that fantasy sports companies can use professional players’ names and their statistics as part of a fantasy sports entertainment enterprise.  At least one commentator has already opined that the 8th Circuit’s decision makes Garçon’s case a “loser.”   Could be.  But there are a few significant facts alleged by Team Garçon that it may use to place the claims outside of the rule set forth in C.B.C. Distribution.

First, the trial court in that case made it clear that the company was only using the Major League Baseball players’ names and statistics, not photographs or images of the players themselves.  The lack of photographic depictions of the players was an important factor in the court’s analysis. See C.B.C. Distribution & Mktg., Inc. (“there is no allegation in the matter under consideration that CBC uses baseball players’ pictures in conjunction with its fantasy baseball games; rather, the contention is that CBC uses players names in conjunction with their playing records.”)  By contrast, Garçon’s complaint goes to great lengths to explain that FanDuel liberally uses photographs of the NFL players in rosters and other locations throughout the FanDuel platform.

Second, the trial court in C.B.C. held that the First Amendment protected the use of the players’ names and statistics.  Central to the court’s analysis on the First Amendment issue was that there was no advertising of CBC’s services using the player’s names.  (“In the context of the matter under consideration, CBC communicates information about Major League baseball players; CBC does not use players’ names and playing records for the purpose of advertising a product or services.”)  In the Garçon complaint, though, he again goes to great lengths to show the ubiquitous and extensive advertising of the players’ names in order to promote the FanDuel service.  In fact, the allegations in the Complaint reveal Garçon’s name was used 53 times in an infomercial promoting FanDuel.

Third, the C.B.C. trial court noted that there were no allegations that consumers were being deceived by the use of the Major League Baseball players’ names and statistics.  C.B.C. Distribution & Mktg., Inc., 443 F. Supp. 2d at 1086 (“there is nothing about CBC’s fantasy games which suggests that any Major League baseball player is associated with CBC’s games or that any player endorses or sponsors the games in any way.”)  Garçon, on the other hand, specifically alleges that consumers are deceived into believing he supports FanDuel.  It’s not clear if this allegation has merit, especially since Garçon has allegedly “shilled” for FanDuel in the past.  But, again, this may be a differentiator that Garçon may use to try to get out from under the rule in C.B.C.

Will Garçon push his claims over the goal line?  Or, will he be tossed out of the game?  It’s hard to know at this early stage of the duel.  Both sides appear to be suiting up for a full four quarters.  For now, the rest of us will simply have to provide color commentary from the sidelines.