DraftKings’ Bid for Early Appeal Rejected in MLB NFT Lawsuit

A federal judge denied DraftKings Inc.‘s request to pursue a midstream appeal of her ruling allowing a publicity-rights lawsuit from the commercial arm of the Major League Baseball players’ union to proceed against the online sports betting company.

Judge Karen S. Marston rejected DraftKings’ argument that it should be allowed to immediately appeal the denial of its motion to dismiss the case because it explores “the outer bounds” of a public interest exception to legal bans on misappropriating another’s name, image, or likeness. Gaining clarity on that question, she said in an opinion issued Wednesday, isn’t enough to overcome “the concerns of confusion and delay caused by protracted, piecemeal litigation.”

MLB Players Inc. sued DraftKings and Bet365 Group Ltd. last year in the US District Court for the Eastern District of Pennsylvania over their use of athletes’ images for non-fungible tokens. DraftKings argued in its motion to dismiss that players’ publicly-available details “comfortably” fall under newsworthiness exceptions carved out by state statutes and common law.

Marston also shot down DraftKings’ argument that an interlocutory appeal should be allowed to address whether MLBPI has standing to bring the lawsuit. The judge found it didn’t bring up those questions in its motion to dismiss briefing, and so she hadn’t ruled on them.

Winston & Strawn LLP and Langer Grogan & Diver PC represent MLB Players Inc. Royer Cooper Cohen Braunfeld LLC and Debevoise & Plimpton LLP represent DraftKings.

The case is MLB Players Inc. v. DraftKings Inc., E.D. Pa., No. 2:24-cv-04884, mot. to certify order for interlocutory appeal denied 5/21/25.