Overview:
The Major League Baseball Players Association files a right of publicity suit alleging that the DraftKings online gambling platform is unjustly profiting from players’ images.
DraftKings vs Sports Legends
DraftKings and bet365 are online peer-to-peer fantasy sports betting platforms, which allow fantasy baseball players to draft real players into fantasy leagues. US-based DraftKings offers a range of sports players to place bets on, including athletes from the National Football League (NFL), National Basketball Association (NBA), Professional Golfers Association (PGA), and the National Hockey League (NHL).
Fantasy Sports Betting and Real Life Legal Challenges
Fantasy sports betting using online technologies is relatively new, and a number of challenges have been brought to court as a result. The Supreme Court decided in 2018 to permit states to make their own rules on sports betting, and 38 states and the District of Columbia have since legalized betting on sports. Since this landmark decision, consumers have spent an estimated $220 billion on sports betting in the U.S. Is this market bolstered unfairly by using the likenesses of professional sports players?
All Bets Are Off, Says MLBPI
Major League Baseball Players Inc., a for-profit corporation that acts as the Major League Baseball players’ bargaining agent, filed two suits in Pennsylvania and New York, alleging that DraftKings and bet365 (sued in Pennsylvania), and FanFuel and Underdog (sued in New York) were illegally using players’ likenesses on the betting companies’ websites and apps. The suit alleges that the use of the images is not informational but promotional, explaining that “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. Indeed, both DraftKings and bet365 offer the same types of bets in other sports without using player images.” Furthermore, bets on the platform about how individual players might do can be placed by pulling up the players’ profiles and statistics.
As an article from Law365 notes, the platforms do not use player images for all sports. For example, for bets involving the NFL, player images were not used when the 2024-2025 rosters were announced. The lawsuits allege that professional athletes, like actors or other celebrities, earn compensation not only for playing a sport, but also in commercial endorsements and as part of personal brands that deserve protection. “For professional athletes, the ability to control the commercial use of their names, images, and likenesses (commonly referred to as the “right of publicity”) is a crucial return on their substantial career investment,” wrote the plaintiffs in the New York suit.
Publicity Profiles and Consumer Surveys
Right of publicity laws were created to prevent commercial interests from using the names, images, or other personally identifying characteristics of a person without permission. Because online betting shows no sign of slowing down, more of these challenges could appear. Consumer surveys that measure the impact of these images on consumer betting behavior could be a strike out for online betting companies, if the results showed that consumers thought that MLB players endorsed the betting platforms or were affiliated with the platforms.
Consumer surveys can measure right of publicity issues and are commonly accepted in courts. If you have a right of publicity issue and need a home run survey design, call MMR Strategy Group.