DraftKings MLBPA News Argument to be Reviewed by the Third Circuit

Sports betting company DraftKings has said it disagrees with a Pennsylvania federal judge’s decision to allow a lawsuit surrounding the use of player likeness and images to proceed, reasserting it constitutes news under state publicity law.

The lawsuit, filed by the Major League Baseball Players Association (MLBPA) last September, claims that DraftKings ran advertisements using players’ identities without the union’s approval. This includes using players’ headshots next to gambling odds and prop bets, as well as player images in social media promotions.

DraftKings Claims Use of Public Info Is Permissible As News

Representatives from DraftKings claimed before U.S. District Judge Karen S. Marston last Wednesday that the company’s use of player images should be covered by an exemption under a state publicity law reserved for news stories.

Despite Marston having already rejected that argument, Megan K. Bannigan of Debevoise & Plimpton LLC said the Third Circuit will review it as an issue of first impression.

Bannigan stressed that moving the case forward would give both parties a clearer understanding of what constitutes news.  

“Even with the proper legal scope, I still think we have the question of whether odds equal news,” Marston said.

Bannigan replied: “We think it’s not a factual question if the exception is broad enough to apply.”

David Greenspan of Winston & Strawn LLP also disputed DraftKings’ claims, contending that DraftKings’ use of NIL was not covered by the news exemption.

“This is a casino,” Greenspan said. “They’re not news.” 

Unauthorized NIL Point of Contention

The union stated in a filing on April 17 in Pennsylvania’s Eastern District U.S. Court that the sportsbook’s request had no basis and would not help the case move closer to a resolution.

“Apparently hoping that if it throws enough against the wall, something will stick, DraftKings … has not shown any substantial ground for difference of opinion as to the two standing issues it raises,” the filing reads.

 Bet365 was initially named a co-defendant but was later dropped from the complaint by MLBPA.

In the filing, the union’s lawyers stated: “In short, DraftKings has not shown, and cannot show, that an interlocutory appeal would ‘materially advance the ultimate termination of the litigation,’ nor that the order denying its motion to dismiss involves a ‘controlling question of law’ on which there is ‘substantial ground for disagreement.

“This Court should deny the motion, deny any stay of discovery, and allow this case to move promptly toward trial.”

Another suit alleging improper use of NIL was filed the same month in New York against FanDuel and Underdog Fantasy. The union has since reached an undisclosed settlement with FanDuel. The case was “dismissed with prejudice,” meaning it cannot be filed again at a later date.

In March, Marston rejected DraftKings’ request to dismiss the lawsuit. Marston said that MLB Players Inc., — a corporate subsidiary of the MLBPA, presented plausible claims for “violation of the common law right of publicity” and used players’ NIL “without authorization and for their own commercial gain” in promotional content.

DraftKings disagreed, stating it used publicly available information.

Marson said in her ruling: “Baseball may still be America’s favourite pastime, but sports gambling has become a serious threat to baseball’s crown.”  

 Partnership with PENN Secured

MLB Players Inc. is now partnered with PENN Entertainment, allowing both ESPN Bet (U.S.) and theScoreBet (Canada) to incorporate player NIL into their betting platforms for marketing and retail purposes.

OneTeamPartners President Frank Arthofer announced last month that the agreement “brings fans closer to the game while unlocking new business opportunities in sports betting.”

A similar agreement was reached between MLB Players Inc. and Fanatics Sportsbook in September 2024. 

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 Sports betting company DraftKings has said it disagrees with a Pennsylvania federal judge’s decision to allow a lawsuit surrounding the use of player likeness and images to proceed, reasserting it constitutes news under state publicity law. The lawsuit, filed by the Major League Baseball Players Association (MLBPA) last September, claims that DraftKings ran advertisements using
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