NFL Player Pierre Garcon Drops Right of Publicity Suit Against FanDuel

By Jennifer E. Rothman
January 15, 2016

Yesterday, Pierre Garcon dropped his class action against FanDuel for using his and other NFL players' names and likenesses in fantasy football games. It is not clear yet whether some sort of settlement was reached or if so, what monetary payout might have been made. Garcon may also have decided that the case would be a loser under the well-liked ruling by the 8th Circuit in C.B.C. Distribution & Marketing v. MLB Advanced Media, 505 F.3d 818 (8th Cir. 2007).  In C.B.C., the federal appeals court held that the use of players' names and statistics in a fantasy baseball game was protected by the First Amendment. I had posted about this case in October when it was filed. I considered the possibility that courts would find it more squarely under the recent holdings of Davis v. Electronic Arts, Keller v. Electronic Arts, and Hart v. Electronic Arts, rather than C.B.C.  In these thus far successful cases against Electronic Arts, both the 3rd and 9th Circuits rejected First Amendment defenses to the use of players' likenesses in sports videogames.

Chalk this one up as another missed opportunity to get guidance on the parameters of the First Amendment defense in right of publicity cases.  For real guidance, of course, we will have to continue to wait and hope that the Supreme Court takes up the issue in Davis v. Electronic Arts which was recently taken off the conference calendar and has not yet been rescheduled.

Notice of Voluntary Dismissal With Prejudice, (D. Maryland Jan. 13, 2016)