MLB Players Union Urges Judge to Deny DraftKings NIL Appeal Bid

Major League Baseball’s players union urged a federal judge to reject betting site DraftKings Inc.‘s request to appeal her denial of their bid to dismiss the union’s publicity rights suit.

MLB Players Inc. derided DraftKings’ effort as “hoping that if it throws enough against a wall, something will stick” in a Thursday filing in the US District Court for the Eastern District of Pennsylvania. Nothing in DraftKings’ bid to certify an interlocutory appeal raises significant disputed legal questions or bring the case closer to its end, MLBPI said.

The effort to scuttle an early appeal aims to move the name, image, and likeness lawsuit into discovery. Judge Karen S. Marston declined to dismiss MLBPI’s claims on March 14, saying that while some uses appeared to resemble news reporting, she couldn’t categorically rule all were, noting some posts were interwoven into advertising.

Pennsylvania right of publicity law’s “associated with a news report or news presentation” exemption doesn’t apply to the gambling service, MPBPI aruged. Martson’s opinion declined to read a “newsworthiness” exemption into that language, and questioned whether unique odds set by the site appearing alongside player images constitute “news.”

Even in the “highly unlikely” event the US Court of Appeals for the Third Circuit adopts a “newsworthy” exemption, applying it is “highly fact-intensive,” MLBPI said. The case would thus have to proceed to discovery, summary judgment and a “likely trial” regardless of the midstream appeal, it said. DraftKings also failed to support its claims that state law doesn’t allow publicity rights claims based on group licensing rights or brought by an indirect licensee with legal authority, it argued.

MLBPI, which sued in September, dismissed Bet365 last month. It also sued Underdog Sports Inc. and FanDuel in New York federal court before dismissing FanDuel in November.

Counsel for both parties didn’t immediately respond to requests for comment.

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

The case is MLB Players Inc. v. DraftKings Inc., E.D. Pa., No. 2:24-cv-04884, 4/17/25.