On September 16, MLB Players Inc. (MLBPI) sued two sports betting companies that operate the DraftKings and bet365 websites and mobile apps. The core of the lawsuit is whether the use of MLB players’ photos by the sports betting websites requires obtaining a license from MLBPI.[1] The plaintiff, MLB Players Inc., is a subsidiary of the Major League Baseball Players Association (MLBPA), with the exclusive right to market group licenses of name, image, and likeness of all baseball players, among other things.
MLBPI admits it is acceptable for sports betting websites to use information about the player, such as an athlete’s name, past and current performance, and relevant statistics in order for bettors to place informed bets. They argue, however, that pictures cannot convey any statistics about the player that would be meaningful to a bettor, so they cannot impact a bettor’s decision whether to place a particular bet.[2]
The lawsuit alleges three ways that the websites use player photos. First, the photos are used adjacent to player names in association with prop bets, in which the bet is placed on the individual performance of a player.[3] The lawsuit contrasts this with NFL prop bets on the same websites that do not use player images to argue that the images are not essential information needed to place bets and therefore serve a promotional purpose.
Second, the sports betting websites use the player images in displaying the team roster.[4] Again, the lawsuit asserts this is unnecessary use of the player image because NFL team rosters are displayed with players names only, and therefore the pictures provide no information beyond the required text of player names.
Third, the lawsuit alleges the placement of player images within advertisements. As an example, MLBPI alleges that the social media posts include player images in a multi-slide post that starts “with what appears to be a piece of sports reporting yet concludes with an advertisement encouraging viewers to of the ad to place a bet.”[5] The Pennsylvania law under which this suit was filed for unauthorized use of name or likeness specifically excludes liability when the use of a person’s likeness is in association with a news report.[6] MLBPI may have hurt its own case on this allegation by preliminarily admitting that these have the appearance of a news report on sports. We will have to watch how the court sorts out whether these are primarily advertising items or news reports.
The outcome of this case could have a ripple effect across the sports betting industry and other sports ventures. MLB Advanced Media used to license player names and playing records for use in fantasy sports. In 2006, one provider of fantasy sports games successfully sued for the right to use MLB player names and playing records without a license. The court held the statistics were in the public domain and MLB could not restrict their use.[7]
Similarly, if DraftKings and bet365 are successful in this case, it would grant additional freedom to use player images in association with public playing records.
Conversely, if MLBPI is successful, it could have a broader chilling effect on sports-related enterprises. Sports betting websites would have to choose between essentially a text-centric website or renegotiating license agreements with the player associations of all sports. Other websites, even ones directed only at non-commercial fantasy sports, that aggregate team rosters and statistics would likely also have to remove player photos.
Collegiate sports have had enormous NIL policy changes in recent years that have been covered on this blog,[8] but this current case shows continued tensions over these rights in the realm of professional sports.
[1] Complaint, MLB Players Inc. v. DraftKings, Inc., No. 2:24-cv-04884-KSM (E.D. Pa. Sept. 16, 2024).
[2] Id. ¶¶ 33–34.
[3] Id. ¶¶ 28–29.
[4] Id. ¶ 30.
[5] Id. ¶ 35.
[6] 42 Pa. Cons. Stat. Ann. § 8316(e)(2)(ii).
[7] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006).
[8] See, e.g., https://ublawsportsforum.com/2024/08/30/name-image-and-likeness-in-college-sports/
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.