DraftKings and bet365 filed motions to dismiss a lawsuit filed by MLB Players Inc., a subsidiary of the MLB Players Association.
In September, MLB Players Inc. filed two lawsuits, claiming FanDuel, Underdog Fantasy, DraftKings, and bet365 are illegally using players’ names, images and likenesses (NIL). Primarily, the sports betting sites are using player’s NIL to promote prop bets on their apps and in their social media.
FanDuel settled with MLB Players Inc. last week after the two parties agreed to a confidential licensing deal. It seems that DraftKings and bet365, however, have decided not to take the fast path to a settlement. Instead, both gaming companies are pushing for dismissal, according to Bloomberg Law.
In its motion to dismiss, filed Monday, DraftKings claims that its use of player NIL falls within the fair use doctrine. That legal doctrine specifies when copyrighted material can be used without permission.
In general, copyrighted material, like pictures, can be used freely if they are used for news reporting, research, teaching, etc. That’s one reason why DraftKings’ motion to dismiss focuses on the company’s newsworthiness. But the doctrine specifically has issues with the free use of copyrighted material for commercial purposes. Also, if the free use of the copyrighted material diminishes the value of the protected property, that is also a no-no for fair use. By those measures, DraftKings and bet365 may have uphill battles.
There is, however, at least one legal precedent on the side of DraftKings and bet365. In 2018, three college athletes sued DraftKings and FanDuel over the use of their images and stats – and lost. That case, however, was before the U.S. Supreme Court overturned the ban on sports betting. Both DraftKings and FanDuel were still fantasy sports providers – and not the market leading sports betting enterprises they are today.
Underdog Fantasy has yet to respond in their respective MLB Players Inc. lawsuits.
