One cannot escape the grasp of the Daily Fantasy Sports industry these days. They have commercials on every sporting event during seemingly every commercial break. They have infiltrated each nook and cranny of fantasy sports websites and articles. Heck, we even make picks for the two biggest purveyors, DraftKings and FanDuel, on a daily basis here on this very website. With all this attention though, the Daily Fantasy Sports industry has made themselves a huge target. Legislators have stuck their hands in the proverbial DFS cookie jar in an attempt to bring regulation to the industry. Now an NFL player, Washington Redskin wide receiver Pierre Garcon, is attempting to be the Ed O’Bannon of his league in the backlash against daily fantasy sports.
Garcon is leading a class action lawsuit on the behalf of NFL players against FanDuel for not having the proper licenses or permission to use the names and likenesses of NFL players. The legal proceedings were filed in Maryland and make mention of the constant use of player names throughout infomercials as well as spot advertising on television and online. Ed O’Bannon took on the NCAA because the players in college sports video games looked, shot, moved, and wore the same numbers as their real life counterparts but weren’t supposed to really be “them.” In Garcon’s case, there is no ambiguity about who FanDuel is talking about during their advertisements. However, the two suits couldn’t be farther from equal.
Firstly, Garcon’s lawsuit targets only FanDuel’s daily fantasy sports website. It conveniently neglects DraftKings, who just so happen to be partnered in a marketing relationship with the NFL Players Association. Though they get to use NFL stars in their advertising, DraftKings doesn’t pay the league or its players a cent for use of statistical references to players. The suit also doesn’t name Yahoo!, a fantasy sports juggernaut but neophyte in the daily realm. Yahoo! recently streamed the first ever online-only NFL broadcast between the Bills and Jaguars from Wembley Stadium in London.
Sure Garcon doesn’t have to take on the industry in its entirety at one time, but deciding to take a stance on the only company with no direct working relationship in the league seems both fishy and petty. It is made even more stranger by several other factors:
- The Washington Redskins, Garcon’s employer, have a direct marketing relationship with FanDuel. They were one of the first teams to sign a multi-year marketing/sponsorship agreement with the DFS company. Exactly half the league’s franchises have signed similar deals with FanDuel. The Redskins even have an area at FedEx field dubbed the FanDuel Lounge.
- Garcon had a marketing deal with FanDuel as late as last season. He would openly promote FanDuel contests and even ran weekly contests of his own through the site.
- The NFL Players Association is leaving Garcon to his own devices on the suit. Unlike suits from DFS players in which many people have pig-piled on the industry, Garcon is on his own island here. He is active player taking on a big time advertiser for his sport by himself. O’Bannon was long retired before he went after the NCAA and had many backers. Garcon still has earnings potential in the NFL which makes a suit of this kind a head-scratcher.
Garcon may think he’s a trailblazer in an attempt to put a dent into the fantasy sports industry’s armor, but he is far from it. Both the NBA and MLB have taken aim at the fantasy industry in the past for likeness rights and both were soundly defeated on the basis that using names and their corresponding statistics for fantasy purposes is akin to a newspaper putting similar information into a box score in the sports section.
He wants to be compensated for FanDuel using his name recognition and popularity driving the profits of the organization. That is as an absurd a notion as they come. Fantasy sports has been gaining steam for years as a business and daily fantasy is just an offshoot of that. It is the sport that drives the “fake sport”, not individual players. Have you once encountered a person who only plays fantasy basketball because of LeBron James or Kobe Bryant or fantasy football because of Peyton Manning or Tom Brady? I didn’t think so.
Pierre Garcon may have had a falling out with FanDuel which could be an underlying reason why he is doing what he is doing. Though he says to the contrary, there is little rational explanation for both the timing and the aim of his class action lawsuit. Hopefully this case is dismissed and doesn’t put us on a slippery slope in the sporting world where first amendment freedoms are thrown in the garbage. Who knows where athletes would turn next in such a dubious conquest.