Bet You Didn’t Know She Could Get Paid For That: Using Sports Betting and the Right of Publicity To Address the Gender Wage Gap in Professional Sports

Abstract

May 14, 2018 is among the most significant days in modern American sports history. No one earned a gold medal or played a championship game. There was no World Cup or National Series title on the line. Instead, with just a keystroke, the U.S. Supreme Court held the Professional and Amateur Sports Protection Act (PASPA) unconstitutional, thereby legalizing sports betting across the country. In the two years following the decision, dozens of states have established sports betting operations. For professional sports athletes and their agents, this new era brings with it questions of how state laws regarding the right of publicity will interact with laws governing sports betting operations. Complicating this question is well-established precedent governing fantasy sports and the online platforms that profit off of the name, image, and likeness of professional athletes. Against this backdrop, female professional athletes continue to earn significantly lower salaries than their male counterparts. This Article examines the gender wage gap in professional soccer and basketball, and explains the significance and history of PASPA. It then reviews the case law regarding professional athletes and their right of publicity claims. It concludes by suggesting that some female professional athletes may narrow the gender wage gap by asserting their right of publicity on sports-betting platforms.