Another lawsuit where DraftKings is serving as the defendant is moving forward.
Just one week after a New York Eastern District Court judge said the lawsuit filed by Steven Jacobs claiming DraftKings conspired with Gadoon “Spanky” Kyrollos and Oscar Jones to help extort him was moving forward, the sportsbook operator received news another of its motions to dismiss has been denied.
bet365 dropped from suit same day as ruling
Eastern District of Pennsylvania Judge Karen Marston ruled the lawsuit filed by Major League Baseball Players Inc (MLBPI) can move forward, though did dismiss one count for being duplicative of other charges.
The charges in the suit alleged that DraftKings and bet365 were using player images and names both within their sports betting apps and in their social media promotion without the permission of MLBPI, the union representing league players.
On the same day the motion was posted, bet365 was withdrawn as a plaintiff in the case.
In a similar case filed in New York, the MLBPI levied similar charges at FanDuel and Underdog Fantasy, but later dropped FanDuel from the case after reaching a settlement with the operator.
In its motion to dismiss, DraftKings argued its use of player images and names fell within the real of fair use. Citing a similar case in Illinois involving FanDuel’s daily fantasy sports product that sided with the operator that the information being presented was “newsworthy”.
Judge disagreed with arguments about fair use of player NIL
In her opinion rife with baseball references, Marston called DraftKings’ motion “a swing and a miss”.
Specifically, the court noted that the phrasing of the Pennsylvania statute regarding violation of privacy exceptions for “news programs or news presentations”.
“Pennsylvania is not the only state to pass legislation protecting the right of publicity, nor is it the first to include an exception for a ‘news report or news presentation having public interest.’ This type of public interest exception is one of two common carve outs speech involving ‘“’news.’ The second is an exception for ‘newsworthy’ information,” the opinion read.
The defendants tried to argue these two distinctions are interchangable, but Marston cited other cases to conclude that was not the intent of the statute. She was also not swayed that the use of images within a sportsbook qualified as a news presentation, though she was less sure how to categorize social media posts.
Marston did not rule out the idea that odds are news presentations, but she did rule out that she can definitely conclude this without the case first going through the discovery process.
“Although Defendants argue that ‘odds are news,’ the Court is unwilling to hold as much at the pleadings stage of this litigation,” she stated.
DraftKings previously settled suit with NFLPA
While this case of a major league players union is moving forward, DraftKings settled its dispute with the NFLPA over the use of player likenesses within its NFT Marketplace and Reignmaker game.
In that instance, there was no dispute that DraftKings had the legal ability to use the player images and the dispute centered around the closure of the NFT Marketplace and the outstanding balance on the contract.
While FanDuel and bet365 are no longer part of litigation, the Underdog case is still active. The court is currently evaluating a motion to remand the case to state court at the behest of Underdog.
