Introduction
The recent decision by U.S. District Judge Karen Marston in MLB Players Inc. v. DraftKings and Bet365[1] represents a pivotal development in the legal landscape surrounding name, image, and likeness (NIL) rights. The ruling explores critical intersections between publicity rights, commercial speech, First Amendment protections, and the legal boundaries of “news reporting.” The implications extend far beyond baseball, potentially affecting companies using athlete or celebrity NIL in commercial marketing across sports betting, digital advertising, and beyond.
Case Background
MLB Players Inc. (MLBPI), the group licensing subsidiary of the Major League Baseball Players Association, brought this action against DraftKings and Bet365, alleging unauthorized commercial use of player NIL in promotional campaigns. The complaint specifically cited examples where players’ images—including Yankees star Aaron Judge—were used in digital and social media promotions without proper authorization or compensation.[2]
Judge Marston’s ruling denied the defendants’ motion to dismiss claims related to right of publicity violations, misappropriation and unjust enrichment. Only one misappropriation claim was dismissed as duplicative.[3] The case now advances to discovery, where the courts will examine the factual context and intent behind the disputed content.
Defining the “News Reporting” Defense
A central question in this case concerns the scope of the “news reporting” defense under Pennsylvania law.[4] This exemption typically allows use of an individual’s identity without consent when it appears in legitimate news reporting on matters of public interest.
Judge Marston’s ruling made the following critical distinctions:
- Content about newsworthy topics differs legally from content that constitutes actual news reporting;
- Athlete identities cannot be used in commercial promotions under the guise of “news reporting”—even when discussing newsworthy sporting events; and
- Pennsylvania applies a narrower interpretation of this exemption than some other jurisdictions.[5]
The court cited Abdul-Jabbar v. General Motors Corp. (1996)[6], where the Ninth Circuit found that even content comprised of factually accurate information about an athlete’s accomplishments loses protection from right of publicity claims when used primarily for commercial advertising. The decisive factor is not the truthfulness of the content, but whether the use serves a commercial purpose.
The Clear Line: Advertising vs. Journalism
The ruling provided concrete examples illustrating impermissible commercial use. In one instance, a Bet365 social media post featured Aaron Judge alongside betting odds about MLB teams winning 100+ games. Critically, the post made no substantive reference to Judge’s performance or provided any meaningful context—his image simply served to attract attention to the sportsbook’s offerings.[7]
Judge Marston emphasized that content merely resembling editorial or journalistic material, while actually serving an advertising function, cannot claim news exemptions under right of publicity statutes. This creates a clear standard: Content adopting the look and feel of news coverage while fundamentally promoting a product or service remains subject to right of publicity laws and a higher standard for legal clearance than a use of the same content for news or entertainment purposes.
First Amendment Arguments: Limited Protection for Commercial Use
The defendants’ First Amendment arguments referenced cases involving expressive works such as video games and artistic renderings.[8] However, Judge Marston distinguished those precedents, noting they involved transformed or creatively interpreted athlete images—unlike the straightforward use of player photos in this case.
The court found limited grounds for strong First Amendment protection at this stage because the promotional content relied on direct, unaltered use of athlete likenesses primarily for commercial gain. While deferring a complete First Amendment analysis until further factual development, the ruling signals that purely commercial uses face an uphill battle under free speech protections.[9]
Strategic Implications for Industry Stakeholders
This ruling carries significant implications for how NIL is used across industries—particularly in digital marketing, advertising, sports, betting, and branded content. When NIL is used for commercial promotion rather than legitimate reporting, organizations face potential liability without proper licensing.
Key Action Items:
- Conduct content audits to identify where athlete or celebrity NIL appears in marketing materials.
- Implement more rigorous legal clearances processes for NIL-related promotions.
- Review existing licensing agreements to ensure they cover intended uses.
- Develop clear internal guidelines distinguishing between news reporting and promotional content.
- Consider jurisdictional differences in right of publicity laws when planning national campaigns.
The Evolving NIL Landscape
As NIL continues to grow in commercial value, legal efforts to protect these rights are intensifying. Athletes, celebrities, and their representatives are becoming more assertive in controlling NIL usage—with courts increasingly supporting their position.
Several states are enacting or revising right of publicity laws, expanding individual NIL protections and increasing potential liabilities for unauthorized commercial use. This state-by-state evolution has amplified calls for uniform federal NIL legislation—potentially modeled after copyright protections—to prevent a fragmented legal landscape that encourages forum shopping and inconsistent outcomes.
Conclusion
The MLB Players Inc. ruling marks a significant shift in NIL jurisprudence that affects brands, platforms, advertisers, and content creators across industries. The distinction between legitimate news reporting and commercial promotion is becoming more defined—and legally consequential.
In an environment where “earned media” and “sponsored content” demand different legal approaches, organizations must adapt their NIL practices to this evolving landscape. Those who implement comprehensive compliance strategies will be best positioned to avoid liability while effectively leveraging NIL in their marketing efforts.
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FOOTNOTES
[1] MLB Players, Inc. v. DraftKings, Inc., No. 24-4884-KSM, 2025 U.S. Dist. LEXIS 47600 (E.D. Pa. Mar. 14, 2025).
[2] Complaint, MLB Players Inc. v. DraftKings, ¶¶ 23–36.
[3] Memorandum Opinion by Judge Karen Marston, February 2025, at 12–14.
[4] 42 Pa. Cons. Stat. § 8316(e)(2)(ii).
[5] Id., see also Judge Marston’s analysis at p. 10.
[6] Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).
[7] Judge Marston Opinion, at 16–17.
[8] Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003).
[9] Judge Marston Opinion, at 21.