DraftKings has filed a motion to dismiss the lawsuit brought against it by MLB Players Inc, a subsidiary of the MLB Players Association (MLBPA) trade union.
DraftKings says player info falls within the scope of fair use
MLBPI alleged that DraftKings and co-defendant bet365 have illegally been using likenesses of MLB players both within their betting apps and via social media posts encouraging people to wager with their sportsbooks.
Bet365 has not filed its response in the case but DraftKings filed a motion to dismiss this week, arguing that its use of player images fall well within the First Amendment.
The bulk of the motion focused on the newsworthiness of the content DraftKings is presenting in tandem with the player images. In the case of the sports betting app, images are paired with projected statistics and odds related to game performance.
In the case of social media, DraftKings used an exhibit put forth featuring rookie pitcher Paul Skenes and noting his successful statistical run as a Pittsburgh Pirate. DraftKings cited several past court cases to support its stance that the usage of the image, name and statistics associated with Skenes were within the scope of matters of public interest and covered under the freedom of the press.
DraftKings also referenced a 2018 court case involving both itself and FanDuel and several college athletes. In that case, the three athletes alleged that the companies violated their right of publicity by using their images and stats with their daily fantasy sports products.
Past court cases have sided with fantasy sports operators
In that case, the Seventh Circuit Court of Appeals sided with the operators that player data and images fell within the scope of fair use.
DraftKings also noted that, since MLBPI failed to name specific players in its complaint, it was not a valid complaint. Moreover, DraftKings noted that the group only took issue with photos, yet seemed to have no problem with stats and player names, which are covered under the same legal statute.
While DraftKings is fighting the merits of the case, FanDuel has been dropped from a related proceeding in New York after reaching a licensing agreement with the group.
That leaves Underdog as the only defendant in that case, which FanDuel had remanded to federal court when it was first filed in September. MLBPI recently filed a motion to return the case to the state level given that FanDuel is no longer a part of the case.
