There’s a 71-year history of sports-related cases in which courts say athletes have a right in the publicity value of their photograph, imagery and other biographical elements. But courts have also said the First Amendment can trump that right when it intersects with news, publicly available facts and parody or criticism.
The latest test of this dynamic is now before U.S. District Judge Karen Marston, who is presiding over MLB Players Inc. v. DraftKings & Bet365. The case was filed on Monday in a Pennsylvania federal district court. In it, MLBPA’s group licensing subsidiary accuses the betting companies of misappropriating the images and likenesses of hundreds of MLB players on their online and mobile platforms.
The players’ association asserts the defendants started using images of players earlier this year, meaning it’s a new industry practice. The complaint highlights how the defendants’ baseball betting platforms feature MLB player images but their football betting platforms noticeably do not contain NFL players’ images.
The complaint further insists that use of MLB player images “is not merely informational” and instead has “promotional” qualities. Along those lines, the complaint stresses that bettors can just as easily and as knowledgeably place a bet with or without seeing a player’s photo. A bet, which is fundamentally about anticipated athletic performance, arguably has nothing to do with a player’s appearance. “What was true in 1949 remains true in 2024,” the players’ association writes. “A bettor did not need a picture of [the late Hall of Fame center fielder] Richie Ashburn (or Bryce Harper) to place a bet.”
The complaint, brought by Jeffrey Kessler, David Greenspan and other attorneys from the law firms Winston & Strawn and Langer, Grogan & Diver, highlights how the right of publicity is essential to athletes’ control of the commercial use of their NIL.
Players use the right of publicity to negotiate endorsement deals in which a company pays the athlete with the expectation the athlete will enhance the company’s reputation with consumers and boost sales. The value of that right can be diluted if an athlete is perceived as endorsing too many products and services, especially if they are in the same industry or market. The right also, as the complaint underscores, empowers athletes “to avoid being associated with companies” that “they do not wish to be perceived as supporting and endorsing.”
Case law concerning athletes’ right of publicity goes back to 1953, in a decision involving Topps. The U.S. Court of Appeals for the Second Circuit held that a baseball player had a protected publicity right in his photograph being used on a baseball card. Nearly 25 years later, the U.S. Supreme Court determined that a man performing a human cannonball could recover damages for use of his publicity rights on a television broadcast. More recently, Ed O’Bannon proved that the use of players’ likenesses (which are derived from images) in college sports video games without paying those athletes runs afoul of the law.
But DraftKings, which declined a request to comment on the lawsuit, and Bet365 are armed with defenses. They’ll raise them when they answer the complaint and seek its dismissal.
Right of publicity claims have been defeated when defendants persuasively argue the alleged misuse is protected by the First Amendment. In addition to general free speech protections, the First Amendment safeguards speech concerning news and permits transformative applications of publicity rights, such as in cartoon depictions or parodies.
For example, Joe Namath lost his lawsuit against Sports Illustrated, which in an advertisement used a photo of Namath leading the New York Jets to a Super Bowl victory in 1969 over the Baltimore Colts. A New York court in 1975 reasoned the ad didn’t suggest Namath endorsed SI and asserted that “use of professional athlete’s photograph” in that context “was merely incidental to advertising of publisher’s magazine.” Under this line of reasoning, the photo of Namath embodied the kinds of news stories SI subscribers could expect rather than violating his publicity rights.
Altering photograph images into cartoon representations has also garnered protection under the First Amendment. The MLBPA is aware of that point. In 1996, the U.S. Court of Appeals for the Tenth Circuit held against the MLBPA in a case where the players’ association accused Cardtoons card company, which had published cartoon versions of MLB players’ images, of misappropriating players’ right of publicity. The court reasoned that parody cards are “an important form of entertainment and social commentary that deserve First Amendment protection.”
MLB players also came up short in a 2007 case, CBC Distribution & Marketing v. MLB Advanced Media, involving the use of their identities in fantasy sports games. The U.S. Court of Appeals for the Eighth Circuit stressed “the public value of information about the game of baseball and its players,” noting that baseball is “the national pastime.” Moreover, the court observed, information about MLB players “is all readily available in the public domain” and “it would be strange law that a person would not have a First Amendment right to use information that is available to everyone.”
The Eighth Circuit further reasoned that even though fantasy sports services—like sports betting services—are “meant to provide entertainment,” there was no “danger” that consumers would be “misled” into believing the players had endorsed the fantasy sports provider. On the contrary, the court suggested, entertainment activities can be informative.
Some recent case law conveys a similar point. In 2018, the Indiana Supreme Court sided with DraftKings and FanDuel when college football players sued them for violating their right of publicity by using their names, pictures and statistics in connection with daily fantasy sports and accompanying advertising. The court in Akeem Daniels, et al. v. FanDuel, Inc., and DraftKings, Inc., wasn’t persuaded by the fact that DraftKings and FanDuel earned revenue through this usage, instead finding more salient the newsworthy aspects of college football.
Expect DraftKings and Bet365 to argue that use of players’ photos is for informational and newsworthy purposes, consistent with baseball as the “national pastime,” and would not lead a bettor to believe there is an endorsement relationship between a sports betting company and the player. Whether that type of defense holds up under scrutiny remains to be seen in what could become a key case in a disputed area of law.
