The MLBPA Is Swinging at Betting Platforms' Use of Player NIL

Player props are bets that allow you to wager on an athlete’s individual performance. This means that even if your favorite player is on the worst team, they can still win you money. Online sportsbooks simply list the players' names and the props for most sports. However, the setup is a little different for the MLB, which shows an image of the players next to their names.

The Major League Baseball Players Association (“MLBPA”) through its corporate entity, Major League Baseball Players Inc. (“MLBPI”), filed two separate lawsuits against the major sports betting platforms. The MLBPI filed suit in the U.S. District Court in Philadelphia against DraftKings and bet365, and a second suit against FanDuel and Underdog Fantasy in New York State Court. The lawsuits assert that the sports betting companies are misappropriating the names, images, and likenesses of hundreds of MLB players by using images of the players on their sportsbook platforms and social media pages.

The MLBPI represents MLB players in collective bargaining with MLB and other matters affecting the players’ economic and privacy interests. They are the exclusive group licensing agent for all active MLB players, including the name, image, and likeness of players for commercial marketing or promotional activities when three or more MLB players are involved. Here, they seek to recover compensatory and punitive damages and to prevent the sportsbooks from any further misappropriation of the players’ publicity rights.

The MLBPI states that nearly every active MLB player’s name and image is featured on the sportsbooks, without having been granted a license by the MLBPI. Images of the players can be found when selecting player prop bets such as “how many home runs a baseball player will hit in a season.” They believe that the uses of players’ names and images go beyond “information,” which would fall under First Amendment protection, but are instead “promotional” and are thus unprotected. Instead, this “promotional”  usage of player images claimed to be “intended to capitalize on those players’ celebrity and/or notoriety and use it to promote and drive business…”

The complaint compares the sportsbooks' representation of the MLB’s props pages to the NFL’s. Prop pages for NFL players only feature their names without images. Additionally, if a specific MLB team is selected in the DraftKings app, then there is an option to view the “roster,” which displays player cards with the images and information about the players. This “roster” tab is not even available for NFL teams.

The complaint states that, since the legalization of sports betting in Las Vegas in 1949, betters have been able to identify perfectly the wagers they wanted to take based on names alone. In-person sports books simply listed the prop and the odds, without logos or images of players. The complaint said:

Player images are not necessary for this business to function. The core information bettors require to make informed decisions—such as an athlete’s name, past and current performance, and relevant statistics—can be fully conveyed through data alone. In fact, most serious bettors focus only on data in determining what bets to place, including quantitative factors such as performance metrics, matchups, and injury status, among others.

While this quote is relevant to the context of their argument, how dare they insult my 10-leg parlays based on pure intuition and gut instinct? Don’t they know the person who picks their March Madness bracket based on team colors and mascots always wins?

As mentioned earlier, the First Amendment protects speech that is “informational,” such as news, facts, and statistics, and generally permits transformative applications of publicity rights, such as a parody. There is no clear answer as to whether the unlicensed use of players' names, images and stats would violate their right of publicity.

The U.S. Court of Appeals for the Eighth Circuit in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, held that MLB players did not have the right to demand licensing fees from an online fantasy baseball game because the First Amendment preempted Missouri’s right of publicity law.[1] They reasoned that the players' names and general information about them were already in the public domain.[2] They were persuaded by the arguments of a California case, Gionfriddo v. Major League Baseball, in which the court stated that “recitation and discussion of factual data concerning the athletic performance of [players on Major League Baseball's website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection."[3]

In a similar vein, the Indiana Supreme Court in Daniels v. FanDuel, Inc. held that DraftKings and FanDuel did not violate the right of publicity of three former college football players whose names, pictures, and stats were used on a daily fantasy football game.[4] The court reasoned that the use falls within the meaning of "material that has newsworthy value," an exception under the state statute.

There is contradictory precedent in the U.S. District Court for the Southern District of Florida, where the unlicensed use of players’ names and stats in fantasy sports did violate the athletes' right of publicity. In Gridiron.com v. National Football Players Association, the court ruled that a website operator cannot use players' names and images to sell football memorabilia and operate a fantasy sports game.[5]

In 2018, sports betting outside of Vegas became legal with the Supreme Court’s decision in Murphy v. National Collegiate Athletic Association. Since then, thirty-eight states have legalized sports betting, generating billions of dollars in annual revenue. It’s no surprise that the MLB would want a share of the profits from an industry that their league significantly contributes to. It will be interesting to see how the sportsbooks justify their differing treatment of the MLB prop bet pages compared to the NFL’s. With legal precedent split on this issue, there’s a possibility that these cases could escalate to a First Amendment battle in the Supreme Court.

For those wanting to track these cases, they are  MLB Players Inc v. DraftKings Inc et al, U.S. District Court, Eastern District of Pennsylvania, No. 24-04884; and MLB Players Inc v. Underdog Sports Inc et al, New York State Supreme Court, New York County.

Andrew Gagnon is a 3L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon.

Sources:

[1] C.B.C. Distribution & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 (8th Cir. 2007).

[2] Id.

[3] Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411, 114 Cal. Rptr. 2d 307 (2001).

[4] Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018).

[5] Gridiron.Com, Inc. v. NFL, 106 F. Supp. 2d 1309 (S.D. Fla. 2000).