Alexandra S. Bethman
Staff Editor, Delaware Journal of Corporate Law, Volume 50
Introduction
Professional athletes’ Name, Image and Likeness (“NIL”) rights have often been a topic of conversation. As many more states have adopted explicit rights to publicity, there have been a growing number of players licensing use of their NIL rights.[1] In the last decade, however, many of the suits pertaining to NIL rights have been brought against fantasy sports apps and sports betting apps.[2] However, the intersection between players’ rights in the publicity of their NILs and the First Amendment rights of American sports betting companies brings about a host of issues.[3]
The Case Against DraftKings, Inc. and bet365
This pending case was brought by the Major League Baseball Players Inc. (MLBPI) against both DraftKings and bet365 Group Limited (bet365).[4] MLBPI is the collective bargaining unit for MLB players who has been assigned the group NIL rights of every MLB player.[5] The MLBPI acts as the “exclusive group licensing agent” for all active players.[6] Both DraftKings and bet365 are online sports betting companies that also offer fantasy sports and other products.[7] The MLBPI alleged in its complaint that the defendant companies misused players’ NILs and asserted violations under Pennsylvania law.[8] These assertions included violating a PA statute that does not allow unauthorized commercial use of a natural person’s valuable name or likeness, misappropriation of identity, misappropriation of the right of publicity, and unjust enrichment.[9] The defendants ultimately struck out on their motions to dismiss the MLBPI’s claim under Federal Rule of Civil Procedure 12(b)(6).[10] Judge Karen Marston did, however, dismiss the MLBPI’s misappropriation of identity since it was duplicative of the right to publicity claim the MLBPI raised.
The Potential Outcome: Homerun or Strikeout for MLBPI?
A ruling in favor of the MLBPI could dramatically change the way in which sports betting companies conduct business. Social media is a key way in which sports betting companies such as DraftKings and bet365 market their sportsbooks.[11] The rise of TikTok in particular has become a way for sports betting companies to reach a wider and younger audience.[12] The posts which the MLBPI cited to in its complaint were just some of several posts which used players’ images and highlights to promote betting on the respective sites.[13] A ruling against these companies could cause a large shift in the social media landscape for sports betting companies.
The defendant companies also set forth in their motions to dismiss a public interest exception argument that the social media post using the player’s images should be categorized as news reports and not commercial marketing.[14] Judge Marston, in her memorandum, refrained from ruling on this argument at the motion-to-dismiss stage.[15] It seems likely that this public interest argument would fail at trial. DraftKings and bet365 argue that the social media posts they make are newsworthy, and therefore fall within the public interest exception to the Right of Publicity.[16] However, these social media posts, which utilize MLB players images, are ended with a slide dedicated to the players’ stats and an ad for the sportsbook.[17] The players images are inherently being used for commercial advantage by promoting the sportsbook alongside the highlights. Any newsworthiness of a player’s highlight clip is outweighed by the marketing embedded in the social media post. The outcome of this case could set a precedent for how the newsworthy exception of the Right to Publicity is used.
How would this case play in Delaware?
While there is no explicit right of publicity in Delaware, the Third Circuit has suggested that Delaware would recognize that there is an enforceable property right in one’s name, image, and likeness.[18] Because the right to publicity is not explicit in Delaware, the MLBPI would likely have a much harder case to put on without such specific laws already in place protecting the right to publicity. While Delaware may not have an exclusive right to publicity as many other states do, their laws on privacy torts may be suitable for analyzing the case at bar. Historically, Delaware courts have applied the newsworthiness exception to privacy torts implicating the First Amendment.[19] Under a court more apt to rule in favor of this defense, the MLBPI could have been in for a swing and a miss with their case.
Conclusion
The MLBPI surely has an uphill battle, but so do the defendant companies with their proposed defenses. To quote Judge Marston in her memorandum denying the motions to dismiss, “. . . the law is as uncertain as a Phillies playoff run.”[20] If you know anything about a Red October, you will know that the outcome of this case is no homerun for any party involved and there will remain a hopeful chance until that final judgement.
[1] Manav K. Bhatnagar, Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports, 119 Yale L.J. 131, 132 n.4 (2009).
[2] Id. at 132.
[3] Id.
[4] MLB Players Inc. v. DraftKings, Inc., No. 24-4884, 2025 WL 834201, at *2 (E.D. Pa. Mar. 17, 2025).
[5] Id.
[6] Id.
[7] Id.
[8] Complaint, MLB Players Inc., No. 24-4884 (E.D. Pa. Sept. 16, 2024), 2024 WL 4203641.
[9] Id.
[10] bet365 also filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), but given the company’s argument was only concerned with statutory standing, the Court treated the motion as one brought under Fed. R. Civ. P. 12(b)(6) instead. MLB Players Inc., 2025 WL 834201, at *6 n.4; Fed R. Civ. P. 12(b)(1); id. 12(b)(6).
[11] Ryan Bunnel, Sports Betting, Social Media and the Unintended Consequences of Attracting a Younger Demographic, Phx. Bus. J. (Dec. 18, 2023), https://www.bizjournals.com/phoenix/news/2023/12/18/sports-betting-young-demographic-consequences.html.
[12] Id.
[13] Complaint, supra note 8.
[14] Reply Memorandum of Law in Further Support of Defendant DraftKings Inc.’s Motion to Dismiss at 1, MLB Players Inc., No. 24-4884 (E.D. Pa. Jan. 13, 2025), 2025 WL 510950.
[15] MLB Players Inc., 2025 WL 834201, at *17.
[16] Complaint, supra note 8.
[17] MLB Players Inc., 2025 WL 834201, at *2.
[18] Ettore v. Philco Television Broad. Corp., 229 F.2d 481, 487 (3d Cir. 1956).
[19] Barbieri v. News-Journal Co., 189 A.2d 773, 776 (Del. 1963).
[20] MLB Players Inc., 2025 WL 834201, at *1.
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