MLB Players Inc. (MLBPI) is firing back at the suggestion that DraftKings and bet365 were exercising their freedom of speech and the press by using images of baseball players within its app and its advertising.
The pro baseball union responded to the operators’ motions to dismiss the lawsuit brought against them in the Eastern District of Pennsylvania, alleging that they are improperly using player likenesses.
In their motions to dismiss, both bet365 and DraftKings relied heavily on other fantasy sports-related case law that has upheld that player images and statistics related to game performance are newsworthy.
PA usage law has a different standard than other states
However, MLBPI argued that all of those cases are irrelevant given that they are outside of Pennsylvania. Chief to the MLBPI’s argument is that the phrasing of Pennsylvania’s fair use statute is not simply “newsworthiness”. Rather, it specifically cites “news reports” or “news presentations”.
The MLBPI noted that neither bet365 nor DraftKings identify themselves as media companies, suggesting that supports the argument that these social media posts about various baseball players do not fall under “news reports”.
Each of these social media posts also comes with the standard disclaimer operators put on advertisements with terms and conditions as well as responsible gambling language. The union posited that Pennsylvania gambling law may require this kind of language on all advertisements but does not require it on news content, so these posts are intended less as news and more as advertising and promotion.
Finally, the plaintiff addressed the argument that they lacked standing to bring the suit. While the organization itself may not be able to argue harm, the group says it is acting to protect the interests of its individual members who have standing to bring suit.
Second suit against Underdog active in NY
The MLBPI’s argument in Pennsylvania relies heavily on state law, so it will need to take a different tact in its other pending case against Underdog in the Southern District of New York, which is active and awaiting Underdog’s response to the initial complaint.
FanDuel was initially attached to the suit in New York along with Underdog but was dropped after the company agreed to a licensing deal with MLBPI. In fact, the deal with FanDuel and a similar partnership with Fanatics was mentioned by MLBPI in its Pennsylvania response to support its argument against their competitors.
