The Commodification of College Athletes

A recent Indiana Supreme Court case has ruled that statistical information relating to college athletes’ performances is not protected under their right to publicity as they are newsworthy and the information is free to use. The holding comes after several student-athletes brought claims against online mobile fantasy sports and gambling companies for using their statistics and images on their sites without permission. The case in question, Daniels v. FanDuel, was closely watched and even joined by some professional players unions.

While the full range of consequences for the Court’s holding remains unclear, of particular importance is its abstention from creating a clear rule regarding the player’s images—most fantasy sports and gambling sites will display both the player statistics and their images or other identifying information, but the Court’s opinion only fully addressed the statistics, holding that player images may be used without consent for newsworthy purposes. The Court did make clear that, although the sites are using the information for a commercial or for-profit purpose, the use is to be allowed as it is still newsworthy. The Court explained further that this would continue so long as the use does not suggest that the athletes are endorsing a particular service or product.

An individual’s name and photograph is a much more personal thing than statistical information regarding their performance, so this raises the question as to whether including such personal information or player likenesses on a gambling site qualifies as an endorsement and if so to what extent. Such information is not necessary to online gambling enterprises as the contests are purely statistical in nature, so athletes may be able to protect their names and images where they couldn’t protect their player information.

Arguing that incorporation of their image constitutes a commercial use, athletes could strengthen their claim of misappropriation or violation of their right of publicity. The sure outcome of this case however is that the Court’s silence on the issue of displaying players’ likeness will likely lead to more legal battles in the future.

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