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.

Suit by 1983 championship NC State team against NCAA, CLC may be one to watch

With the rapid passage of various so-called “NIL” statutes in numerous states, it is perhaps inevitable that a claim will come along which may not be fully answered by the statutory provisions. Without speculating if that will be applicable in the following, I will note simply that the dynamics of the recently filed suit against the NCAA and Collegiate Licensing Company by players of the North Carolina State 1983 championship team, may be one to watch. Here’s a link with more information about the filing: Players from 1983 NC State team file suit against NCAA, CLC

The Right of Publicity and Scarlett Johannson’s response to ChatGPT Sky voice

Details and context matter in Right of Publicity analysis. As a brief summary, OpenAI recently released its ChatGPT 4.0 with a chatbot voice (“Sky”) which Scarlett Johannson says is “eerily similar” to hers. We don’t know how the situation may get resolved, but the Right of Publicity provides a response. Apparently, an offer was made by OpenAI for Johannson to voice the ChatGPT 4.0 chat bot. Johannson declined. It may have seemed like a natural fit due to Johannson’s role in the movie Her in which she was the voice of an AI system. Perhaps that fit was so natural that on May 13, 2024 in proximity to the release, Sam Altman issued a one-word tweet: “her.” Past negotiations and this tweet could be the subject of considerable attention, as an example of why “details and context matter” when it comes to the Right of Publicity. The company has denied that Sky was meant to sound like Johannson, but these details could possibly indicate otherwise.

Here is a link to one of numerous articles providing more details: Scarlett Johannson ChatGPT voice that sounded like her

RBG and ROP (Right of Publicity and Ruth Bader Ginsburg)

Yes, there is a Right of Publicity interest pertaining to Supreme Court Justice Ruth Bader Ginsburg, who died a week ago at the age of 87. As always, application and analysis of her Right of Publicity would depend on context and specifics in any particular situation. But sticking to overview observations, since she was a lawyer, it may be a safe assumption that Justice Ginsburg had a testamentary plan in place. Since she was attuned to intellectual property matters, it is possible there were specific Right of Publicity provisions in her testamentary plan. Since she is commonly referred to as RBG, it is safe to assume RGB could unequivocally identify Justice Ruth Bader Ginsburg. And given the preceding points, it is safe to assume potential commercial uses or trademark activity could intersect with some of these points. This may all be academic, of course. We’ll see.

Is it okay for Antonio Brown to release a song called “Andrew Luck?”

Sorry to disappoint anyone expecting this blog entry’s title to be answered here, but for a number of reasons, it isn’t. The question can certainly be raised though. Former Steelers, Raiders and Patriots wide received Antonio Brown has released a song or track entitled “Andrew Luck,” which opens with audio from Andrew Luck’s press conference announcing his retirement, and including a repeated refrain with the lyrics:

I got the game and I’m not on stuck
I’m out the way like Andrew Luck
Everybody callin’ my phone, shut up

A while back, Outkast released a song called Rosa Parks. Litigation ensued and Parks won. In short, the song wasn’t about Rosa Parks and the title was deemed a violation of Rosa Parks’ rights. Paraphrasing, a great line from that decision was that “crying artist does not confer carte blanche” to use a person’s name in a way that does not relate to the song, but which certainly serves to bring attention to the track.

There are various other examples. Logic released a song called “Keanu Reeves” which, interestingly and perhaps significantly, does not actually even reference Reeves. Instead, the connection, such as it is, refers to “the one” like Keanu Reeves, which of course is a reference to Reeves’ character Neo in the Matrix film franchise.

The legal test that likely applies best to these facts is the Rogers test, from litigation brought by Ginger Rogers in response a film named “Fred and Ginger.” Rogers lost the claim on the basis that the title was relevant to the film’s title and not simply a ploy to attract attention from Rogers’ name. Conversely, the same test was applied to Outkast’s release of a track called “Rosa Parks.” The lyrics were not about Rosa Parks, and it was determined to be a violation of Parks’ rights and an effort simply to attract attention to the song.

So I’ll leave it to you to decide if Brown’s song “Andrew Luck” is fair, appropriate or permissible, or if it fails the Rodgers test as Outkast’s song did a while back. I expect we’ll never really have this question answered, but it is an interesting reference point to consider in any event.

Here’s a link to the video and a recent interview with Antonio Brown:  Antonio Brown releases track named Andrew Luck