MLB Players Inc. v. DraftKings, bet365 Memorandum ruling can serve as a guide in sports betting and fantasy sports disputes

In a recent meeting of my Right of Publicity class, we covered fantasy sports disputes ranging from Tom Brady’s suit against Yahoo in 2006 to Indiana’s Supreme Court holding in Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018). On March 14, 2025, a related Memorandum ruling issued in Memorandum ruling in MLB Players Inc. v. DraftKings, bet365 (case # 2:2024cv04884) (U.S. District Court for the Eastern District of Pennsylvania) denying DraftKings and bet365’s motion to dismiss. (For more commentary and references to similar disputes, see also MLBPA suit against DraftKings coverage). Once again, the essential role served by the Right of Publicity was confirmed, this time in the context of the evolution of the multi-billion-dollar industries of fantasy sports and sports betting.

The MLB Players Inc. v. DraftKings ruling provides a summation of the dispute and issues to be determined. Major League Baseball players grant authority to the MLB division MLB Players, Inc. to serve as the group licensing agent for the players in relation to commercial activity involving the group licensing rights of MLB players. According to the ruling, DraftKings and bet 365 use a headshot next to the name of each player, provide an individual page for each player in its app, and feature the players in social media posts which function as advertisements encouraging placement of bets on the player.

In a move reminiscent of the invention of advertisements incorporating some degree of editorial content and then being referred to as an “advertorial,” Draftkings and bet365 would make a multi-slide social media post with a brief query like “Is Paul Skenes on the most dominant stretch in sports history?” Then, in the same post, is a slide encouraging viewers to place a bet on DraftKings’ or bet365’s platform.

The Memorandum looks at distinctions between right of privacy and the Right of Publicity, and common law compared to statutory publicity rights, and officially adopts the Restatement Third of Unfair Competition §46. The Court also determines that the players indeed assigned the authority (and therefore standing) to MLB Players, Inc. to assert the claims on their behalf.

Another case cited in the Memorandum is C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Adv. Media, 505 F.3d 818 (8th Cir. 2007), which was also covered in that recent Right of Publicity class. One of the unsettling aspects of C.B.C. is the determination that “unlike cases where was an appropriation of likeness to create the impression that a famous person endorses a product, CBC’s use of players’ names in no way creates an impression that players endorse CBC’s fantasy games.”

So…several things. Name is specifically enumerated in almost every Right of Publicity statute. Based on the evolution of fantasy sports platforms, likeness now is a ubiquitous component in such offerings. Does C.B.C. suggest that selling tee shirts using “only” the name and stats of a MLB player is not an infringement? More importantly, Right of Publicity analysis does not require falsity. There does not need to be a false endorsement for a viable Right of Publicity claim (a common analytical slip which also shows up in Daniels v. FanDuel). Lastly, C.B.C. says the use of the players’ names and stats does not go to the heart of players’ ability to earn living which is as baseball players and not by publication of their playing records. Does this suggest that any new invention that makes novel use of a Right of Publicity can be sheltered from liability since it isn’t the way a player earns a living?

Back to MLB Players Inc. v. DraftKings, Defendants argued that MLBPI failed to allege that the Right of Publicity (NIL) of the professional baseball players has value (despite the Defendants’ platforms being populated by the very rights and value it is questioning). DraftKings and bet365 also allege they did not use the players’ Right of Publicity for a commercial or advertising purpose. The Court makes short work of these assertions. With a nod to Indiana’s Right of Publicity statute, the Court dispenses of Defendants’ public interest and newsworthiness defenses. The Court considers the Daniels v. FanDuel ruling in which newsworthiness was a factor, yet has no difficulty determining that it will not read a newsworthiness exception into Pennsylvania’s common law or statutory Right of Publicity at this juncture. Similarly, the Court refuses to rule that Defendants’ social media posts constitute “news reports” and rejects Defendants’ contention that “odds are news.”

The Court is “unwilling to categorically hold as much at the pleadings stage of this litigation.”

There is a lot at stake in these cases. The Right of Publicity provides a primary means of recourse in response to infringing activities, and rulings like the Memorandum in MLB Players Inc. v. DraftKings, albeit an interim one, can guide the way for application of the Right of Publicity.