IP Law Daily, PUBLICITY RIGHTS NEWS: MLB sues DraftKings in Pennsylvania for misappropriation of baseball player images, (Sep 17, 2024)

By Robert B. Barnett Jr., J.D.

The complaint alleges that the two big sportsbook sites have used baseball players images to sell their offerings and drive revenue without permission from MLB.

Major League Baseball has sued DraftKings and U.K.-based bet365 in Pennsylvania federal court, alleging that the two sportsbooks have illegally used the likenesses of hundreds of MLB players on their apps and websites and in their advertising without permission in violation of Pennsylvania law. The complaint points out that, while the two sportsbooks offer betting across a wide array of sports, player images are used only for baseball bets (MLB Players Inc. v. DraftKings, Inc., No. 2:24-cv-04884-KSM (E.D. Pa. Sept. 16, 2024)).

DraftKings was founded in 2012 to provide daily and weekly fantasy sports in the U.S., while Bet365 is an online gambling company based in the United Kingdom that has offered sports betting outside the U.S. since 2001. Both moved into legalized sports betting in 2018 or soon thereafter, following the U.S. Supreme Court’s decision in Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018), which allowed states to legalize sports betting, and which rapidly ushered in the new industry. Currently, 38 states and the District of Columbia have legalized sport betting, with legislation currently pending in two more states. Pennsylvania legalized online sports betting in 2019 and has no restrictions on betting types. Since Murphy was decided, an estimated $220 billion has been spent on sports betting in the U.S., according to the complaint.

MLB Players Inc. (MLBPI) is the exclusive group licensing agent for all active MLB players. Each player assigns his exclusive, worldwide rights in his name, image, and likeness to the MLB Players Association, which in turn assigns all rights to MLBPI. According to the complaint, the ability of professional athletes to control commercial use of their names, images, and likenesses is “a crucial return on their substantial career investment.” They have the inherent right, the complaint argues, to prevent their name, image, and likeness from being associated with a company, commercial product, or industry with which they do not want to be associated.

The complaint makes an interesting comparison between the two sportsbooks’ use of player images between baseball and football. Both DraftKings and bet365, on their baseball apps and websites, use the image of the players, (1) on individual player pages, (2) in team rosters, (3) as “featured players,” and (4) in introducing new features, among other uses. Both DraftKings and bet365 also use baseball player images in their advertising and in their social media posts, which include bet teasers featuring player images. In the equivalent football apps and websites, however, no player images are used.

The complaint asserts four causes of action. The first is a claim for relief under 42 Pa. Const. Stat. §8316, which creates a cause of action by any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of the person. The second cause of action is for a violation of common law misappropriation of publicity, which establishes a cause of action for individuals whose likenesses have been misappropriated without authorization and for commercial advantage. The third claim is for a violation of common law misappropriation of identity, which establishes a cause of action for invasion of privacy by misappropriation of an individual’s name and likeness. The fourth and final claim is for unjust enrichment.

The complaint seeks injunctive relief that would enjoin DraftKings and bet365 from continuing to use the player images and likenesses on their sportsbook platforms, as well as actual damages as permitted under §8316. The complaint demands a jury trial.

Reportedly, MLBPI has also sued FanDuel and Underdog Fantasy in a similar suit in Manhattan.

The Case is No. 2:24-cv-04884-KSM.

Judge: Marston, K.

Attorneys: Peter E. Leckman (Langer Grogan & Diver PC) for MLB Players Inc.

Companies: MLB Players Inc.; DraftKings, Inc.

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