MLB Union Pushes Judge to Scrap DraftKings NIL Appeal

• MLB Players Association (MLPBA) asks federal judge to reject DraftKings’ NIL appeal effort
• Court ruled against the gaming company’s motion to dismiss last month
• Original suit was filed in September 2024

The Major League Baseball Players Association (MLPBA) is asking a federal judge to oppose DraftKings’ (NASDAQ: DKNG) request for an appeal in a suit brought by the union relating to the gaming company’s alleged misuse of baseball players’ name, image, and likeness (NIL).

In a Thursday filing with the US District Court for the Eastern District of Pennsylvania, the labor organization representing MLB athletes asked Judge Karen Martson to turn back DraftKings appeal motion on the grounds that the gaming company hasn’t met the burden of exceptional circumstances needed to qualify for an appeal. The union also claims DraftKings is employing an everything but the kitchen sink approach in an effort to land an appeal.

Apparently hoping that if it throws enough against the wall, something will stick, DraftKings seeks interlocutory re-view of four separate questions supposedly warranting such extraordinary treatment,” said the MLBPA in the court filing.

The MLBPA/DraftKings legal wrangling stems from a September 2024 suit brought by the union against the gaming company and bet365 in which the labor group claimed the gaming companies used images of MLB players without the union’s consent. The union brought similar litigation against FanDuel and Underdog Fantasy in a New York court, settling with FanDuel last November. Bet365 was dismissed from the suit in March.

DraftKings Already Lost Motion to Dismiss

Last month, DraftKings lost a motion to dismiss the suit with Martson ruling that while some of the company’s use of MLB players’ likenesses was akin to what’s seen in the media, she couldn’t rule that was the case across the board.

“The application of that exception would be intensely factual. This case would thus have to proceed to discovery, summary judgment, and a likely trial, regardless of any interlocutory appeal,” said counsel for the union in the court filing.

An interlocutory appeal is filed by a party in a lower court in advance of a final ruling. The burden of proof is cumbersome, making this form of appeal rare, though not impossible if collateral order doctrine standards can be met by the filer.

“The collateral order doctrine sets forth the rules for such appeals. Interlocutory appeals are extremely rare, and a three-part test determines whether the collateral order exception to res judicata makes such an appeal possible,” according to Cornell Law School.

DraftKings Doesn’t Have the Legal Goods, Claims MLBPA

The union believes that  DraftKings hasn’t and can’t meet the standards needed to be awarded an interlocutory appeal.

“In short, DraftKings has not shown, and cannot show, that an interlocutory appeal would ‘materially advance the ultimate termination of the litigation,’ nor that the order denying its motion to dismiss involves a ‘controlling question of law’ on which there is ‘substantial ground’ for disagreement,” as noted in the legal document. “This Court should deny the motion, deny any stay of discovery, and allow this case to move promptly toward trial.”

The players union hasn’t mentioned an exact amount of financial damages it’s seeking from DraftKings, but there is precedent for the gaming company settling litigation with other labor groups representing professional athletes.