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.

Tara Reid sues over Sharknado merchandise

Actress Tara Reid apparently has filed a lawsuit seeking $100 million relating to merchandising of the Sharknado film franchise.   Reportedly at issue are product categories such as branded beer and slot machines with her likeness on them, which according to her contract require her separate approval.   From a distance, this looks like a contract dispute more than a Right of Publicity case, though certainly the Right of Publicity is implicated by the issues at hand.  If her likeness is on the product, one hopes that the transformative test would not be twisted and stretched to attempt an argument that the image on the product is meant to be the character from the film, not the actress herself, that her likeness is transformed.  But it wouldn’t be the first time a carefully tailored test gets twisted down the line.

Here is Forbes coverage of the lawsuit:  https://www.forbes.com/sites/legalentertainment/2018/12/07/tara-reid-sues-sharknado-producers-for-100m/#26b5b9672c46

Former Bears player Brian Urlacher files lawsuit against Florida hair clinic

If the report on this link is accurate, that a Florida hair clinic used Brian Urlacher without permission to promote their services, this sounds like a clean-cut case of Right of Publicity infringement.  Urlacher reportedly had an endorsement deal with a Florida clinic whose services Urlacher did in fact use, which will likely enhance his position in the damages portion of the lawsuit.  Here’s a link with a bit more information:  Brian Urlacher sues Florida hair clinic

Michael Jordan’s $8.9 Million damages award is instructive

This should lay to rest that old yarn that “it is easier to get forgiveness than permission.”  Late last week, Michael Jordan won an $8.9 Million damages award against the grocery store that used his Right of Publicity without permission in print ads that ran in Sports Illustrated.

At trial, jurors heard the familiar infringer’s refrain that Dominick’s achieved no benefit from the ads, and based on expert valuation testimony, the most it should pay for the ad was around $126,000.  Of course, this overlooks the fact that Michael Jordan apparently does not do deals for $126,000 and rather, the starting fee for a license to use Jordan’s Right of Publicity is generally in the $10 Million range.

So at $8.9 Million, Dominick’s may have gotten a 10.1 % discount.

MTV’s Johnny Bananas sues over Entourage’s Johnny Bananas

John Devenanzio, known as “Johnny Bananas” from MTV’s Real World Key West and other MTV reality shows, has filed a lawsuit in response to the Johnny Bananas character in HBO’s Entourage.  The lawsuit was filed in New York and names HBO, Time Warner, and the creator of Entourage as Defendants.  In addition to monetary damages, the lawsuit seeks to stop distribution of Entourage episodes which include the Johnny Bananas character played by Kevin Dillon. 

Devenanzio’s lawyer also represented Lindsay Lohan in Lohan’s lawsuit against E-Trade for its depiction of the milk-aholic baby referred to simply as “Lindsay.”  That claim has reportedly settled.  Here’s a link to my entry on that claim:   http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby

The Hollywood Reporter write up on Devenanzio’s claim is well-written and thorough, though it does seem to reveal a certain disdain for Devenanzio’s claim.  The claim is characterized as “remarkably vague,” and states that “it appears Devenanzio is not asserting any allegation of trademark infringement” but instead is claiming violation of “his publicity and privacy rights.”   I’m not sure why that in itself is inherently vague. 

I haven’t reviewed Devenanzio’s filings, or those of the Lindsay Lohan claim against E-Trade; however, alleging a trademark violation, or having Federally registered trademarks protecting a person’s namesake or some distinctive aspect of his or her identity, is not a prerequisite to filing a lawsuit when the claimant’s Right of Publicity has been commercially utilized.  This point is a hallmark of Right of Publicity analysis.  The Right of Publicity may share certain characteristics with trademark law, but they are not interchangeable.  Each protects different interests, have their own elements and standards, and have distinct policy rationales.

The write up further states that success in the lawsuit “may depend on whether he can find anything in discovery that shows [Defendants] had  Devenanzio in mind when they created the Johnny Bananas character.”   This is not the standard Devenansio has to meet, though.  For one thing, it may be impossible to find a “smoking gun” that demonstrates a clear link, or an intentional act, of naming the Entourage character after Devenanzio.  If such evidence can be found, so much  the better for Devenanzio’s claim and prospects for punitive damages. 

But a successful Right of Publicity does not require proof of intent to infringe.  What matters most is whether the claimant is identifiable from the portrayal.  Identifiability will be measured by viewers of the show and their determination or impressions, not those of the show’s creators or producers. 

It seems to me that Johnny Bananas is a fairly distinctive nickname.  One does not have to be identifiable on the level of a Michael Jordan, or George Clooney, or President Obama, either.  Instead, a viewer, or a potential jury as it were, can be presented information, context and imagery of Devenanzio’s Johnny Bananas and that of the Johnny Bananas in Entourage.  This may take the form of “aided identification” (as opposed to “unaided identification”), but this does not invalidate a potential Right of Publicity claim.  There might just be something to Devenanzio’s claim.

Here is a link to the Hollywood Reporter article:   http://www.hollywoodreporter.com/thr-esq/mtv-star-sues-hbo-johnny-244446