With less than two weeks left in the Major League Baseball regular season, the players union for the league sued a number of commercial sportsbooks this week over a name, image and likeness dispute.
On Monday, MLB Players Inc. (MLBPI) filed a lawsuit against DraftKings and bet365 in Pennsylvania federal court, alleging that the sportsbooks misappropriated the likenesses of hundreds of players without their consent. Separately, MLBPI filed a suit against two other entities, FanDuel and Underdog Fantasy, in New York state court.
Describing sports betting as a major revenue generator, attorneys for the players criticized the companies for attaching images of the athletes alongside relevant bets.
“These bettors do not consider a player’s picture when making their bets, as an image cannot convey any relevant statistics about said player or their condition, and therefore does nothing to improve their understanding of the bet and does not impact their decision-making process in any way,” the attorneys wrote in the DraftKings’ suit.
The plaintiffs are seeking punitive and compensatory damages from the operators. When reached by Action Network, FanDuel and Underdog declined to comment. Representatives from DraftKings and bet365 did not immediately respond.
The lawsuit filed in U.S. District Court for the Eastern District of Philadelphia made several references to Bryce Harper, a two-time National League MVP signed by the Phillies in 2019.
The 23-page lawsuit contains numerous screenshots with images of Harper from DraftKings' mobile app, as well as Paul Skenes, the Pirates' transcendent rookie pitcher. The images are not merely informational, the attorneys argued, but instead have been used for promotional purposes.
"Users could bet that the Phillies will beat the Marlins, or that Bryce Harper will hit more than two home runs in a given game, without seeing Harper's valuable image," attorneys wrote.
An image of Skenes used by DraftKings accompanied a bet on whether the pitcher will win NL Rookie of the Year honors. Player likenesses were also used on social media.
The defendants' use of player images without obtaining a license for such use is a "flagrant violation" of Pennsylvania’s right of publicity statute, according to the suit.
The suit comes several weeks after the NFL Players' Association (NFLPA) filed a lawsuit against DraftKings regarding a licensing agreement with the company's shuttered non-fungible token (NFT) program. The NFLPA, according to ESPN, believes that it is still owed roughly $65 million from the agreement. Jeffrey Kessler, an attorney who filed Monday's lawsuit, is also part of the team that is representing the NFLPA in the matter.
While the sportsbooks used images of MLB players throughout the summer, the operators have refrained from doing so for NFL counterparts this season, the attorneys contend.
MLB Players, Inc. is the corporate subsidiary of the Major League Baseball Players Association (MLBPA), which represents players in collective bargaining with MLB and in other matters affecting the players’ economic and privacy interests, attorneys for the plaintiffs wrote.
MLBPI is the exclusive group licensing agent for all active MLB players, and it possesses the exclusive right to use, license and sublicense those players’ names, images, and likenesses for any commercial marketing, promotional activity, or product in which the MLB players’ group licensing rights are implicated.
–Counsel for Plaintiff MLB Players, Inc. MLB Players, Inc. v. DraftKings and Bet365, P. 4
The Industry Response
As an industry source explained Monday, the NFL can be notoriously tight with advertisers when it comes to the use of various "marks and logos."
Even prior to the Supreme Court's PASPA decision in 2018, some daily fantasy sports websites expressed hesitancy in posting an image of an athlete next to an accompanying pick.
Marc Edelman is a law professor at the Zicklin School of Business, Baruch College, City University of New York, where he specializes in sports law, antitrust law, intellectual property law and gaming-fantasy sports law. He told Sports Handle in 2021 that the "right of publicity" among athletes has consistently been trumped by First Amendment guarantees on the right of fans to access the information. Because professional athletes are “already handsomely compensated” for their athletic endeavors, Edelman argued that it factors into why they were not entitled to further benefits.
Several years earlier, the Indiana Supreme Court ruled in Daniels v. FanDuel that name, image and likenesses used for DFS purposes are protected by a "newsworthy exception" to state law on publicity rights. But Edelman also advises his clients to exercise a “modicum of caution” when it comes to images because it is not clear that all courts would rule that same way. While case law exists on publicity rights on the DFS side, there is less clarity for legal disputes when a sportsbook uses a player's image without consent.
MLB inked a multi-year partnership with FanDuel in March 2023, a transaction that designated the company as a co-exclusive official sports betting partner with the league.
Mike Seely contributed to this story.
