MLBPA’s NIL Suit Against DraftKings Can Continue, Judge Says

The MLB Players Association’s lawsuit against DraftKings will move forward after a U.S. district judge in Pennsylvania dismissed the sportsbook’s request to drop the case.

The union had sued last year, alleging several gambling companies illegally used players’ photos to advertise prop bets.

In a decision released Monday, Judge Karen Marston wrote the union’s business arm MLB Players, Inc. has made plausible claims for “violation of the common law right of publicity” and “unjust enrichment” in using players’ name, image, and likeness “without authorization and for their own commercial gain” in promotional materials. The judge dismissed one of MLBPA’s four original counts brought in the case for being similar to another one, but kept the other three.

The union filed complaints against DraftKings, FanDuel, Bet365, and Underdog Fantasy in September for use of its players’ NIL without its permission in promotional materials. The MLBPA claimed the “use of player images within their sportsbook platforms is not merely informational—it is promotional.” The union and FanDuel announced in November they had settled for an undisclosed amount.

“At this early stage, these allegations are sufficient to plausibly allege that each player—even purportedly “lesser known” players like former-Phillies (now–Baltimore Orioles) relief pitcher, Gregory Soto—has a valuable interest in his NIL,” Marston wrote in her decision Monday. A footnote said the court “does not look to pass judgment on the notoriety of Gregory Soto” and was referencing an argument made in an earlier hearing.

Spokespeople for DraftKings and the MLBPA did not immediately provide comment.

Also on Monday, the MLBPA dismissed its claims in the case against Bet365, but it didn’t say whether they had reached a settlement.

This isn’t the only legal action the MLBPA has taken over its players’ NIL in recent months. In August, the union’s business arm filed a federal complaint, also in Pennsylvania, against the Pirates and convenience store chain Sheetz for what it saw as “wrongfully exploited” NIL without union permission. The union dropped the suit in January.

The NFLPA also went after DraftKings in court for $65 million over breach of contract in using players’ NIL in its nonfungible token marketplace. The union filed its initial complaint in August, and it issued fiery comments about DraftKings’ motion to dismiss in December. The two sides agreed to a settlement in principle in January and officially dismissed the case in early March.