Gilgeous-Alexander’s Board Game Cease-and-Desist May Backfire

Shai Gilgeous-Alexander wants a board game wiped off the planet. The Oklahoma City Thunder guard and two-time NBA Most Valuable Player has had his lawyers send the fantasy sports company Underdog a cease-and-desist letter, dated May 22, demanding it stop using his name, image and likeness (NIL, the commercial rights to an athlete’s own identity) and destroy every copy of Unethical Hoops, an Operation knock-off built to mock his foul-baiting.

Here is the part the angry letter glosses over. American courts have spent decades siding with parody over the right of publicity, and the surest way to keep a joke about your flopping alive is to threaten the people telling it.

What Underdog Built, and What the Letter Demands

The setup is a straight riff on the surgery game Operation. In the game, players try to pluck nine small basketballs from slots arranged around a cartoon of Gilgeous-Alexander, and a buzzer screams a foul the instant they touch an edge. Phoenix Suns forward Dillon Brooks, a career agitator who has needled stars from LeBron James to the Thunder bench, fronted the promo video that went up on May 21.

The fouls are the punchline. Each slot carries the name of a contact type that critics accuse the guard of selling to officials:

• Phantom contact and head snaps
• Leg kicks and lean-ins
• “Don’t reach” warnings and rip-throughs
• Push-offs, shoulder bumps and the “hook and cook”

“Shai has made hoops all about foul baiting and now you’re stuck guarding him in Underdog’s new board game,” reads the game’s promotional website. Only 100 copies were printed, all of them giveaways, with winners due to be announced Friday. One day after the clip posted, Eric Fishman of the law firm ArentFox Schiff LLP answered on the player’s behalf, demanding Underdog “permanently cease and desist from any and all use of Mr. Gilgeous-Alexander’s NIL in any and all media” and, per the letter obtained by The Athletic, destroy all copies of the board game.

Why the Flop Label Sticks to Gilgeous-Alexander

To understand why a novelty party favor rattled an MVP’s legal team, look at the reputation it pokes. Gilgeous-Alexander has become the league’s lead villain, the player visiting crowds chant “free-throw merchant” at, fairly or not. He won his second straight MVP award this spring, collecting 83 of 100 first-place votes, and he did it while drawing whistles at a rate that drives opponents up the wall.

The numbers give the trolls something to point at. By one widely cited count of his playoff tracking, here is how often he ends up on the floor:

• About 17.4% of his tracked postseason shots ended with him on the court, 39 falls on 224 attempts.
• Nearly four times the floor-hitting rate of Spurs rookie Victor Wembanyama over the same stretch.
• More than half the time, 19 of 37, when he drew a foul on a shot, he fell.

None of that is against the rules, and plenty of stars hunt contact; James Harden built an era of offense on it, and Hall of Fame guard and broadcaster Reggie Miller has argued that officials reward the craft and that baiting fouls is a skill, not a crime. But Gilgeous-Alexander does it as the face of the defending champions, deep into another title push, which turns ordinary gripes into a marketing opportunity for anyone selling a laugh at his expense.

That is the backdrop the letter walks into. The flop talk was already loud before Underdog printed a single game.

Right of Publicity, Meet the First Amendment

Strip away the outrage and the dispute lands on a question courts know well: when does the right to control your own name run into the right to make fun of you? On the law, the comedian usually holds the better hand.

What the Right of Publicity Covers

The right of publicity, the legal engine behind every NIL deal, lets a person control the commercial use of their identity, their name, face, signature, even a recognizable catchphrase. It is why a sneaker brand pays Gilgeous-Alexander to wear its shoes and why an energy drink cannot slap his photo on a can without a contract. Fishman’s letter leans on exactly this right, and on its face the claim is not frivolous, because Underdog is a business selling and promoting a product that trades on a real person’s identity.

Where Parody Tends to Win

The catch is the First Amendment. Parody and commentary about public figures, athletes very much included, get broad speech protection, and that protection routinely overrides publicity claims. The clearest parallel comes from Oklahoma, of all places. In the Tenth Circuit’s 1996 ruling on parody baseball cards, a company called Cardtoons sold caricatures lampooning Major League Baseball stars and their salaries without a license. The players’ union sued over publicity rights and lost. The court held the cards were protected expression, and that selling them for profit did not turn social commentary into mere advertising. On that logic, parody routinely beats the right of publicity.

The Commercial-Use Wrinkle

Underdog’s exposure is not zero. Courts draw a line between transforming a figure into commentary and copying a likeness wholesale to move merchandise. California’s transformative use test, born from the Comedy III case over Three Stooges T-shirts, asks whether a work adds new expression or just cashes in on a famous face. A game that names Gilgeous-Alexander, themes itself entirely around his playing style and exists partly to push a fantasy app is messier than a one-off political cartoon. Where a judge would land depends on whether the court reads the game as a joke about flopping or a product riding a star’s fame.

The case law splits along a clean seam: the more a work comments and distorts, the safer it is; the more it copies a player straight for commercial value, the more the athlete tends to win.

Underdog Has Trolled Before, and Cashed In

Underdog is no fly-by-night prankster. The Brooklyn company, founded in 2020, closed its Series C funding round last year at a valuation of $1.225 billion before new money, led by Spark Capital, with prior backers including BlackRock, Mark Cuban and Kevin Durant. Pranking rival fan bases is a deliberate part of how it markets, and it shows no sign of backing down.

We’ve poked fun at Knicks and Lakers fans, the Red Sox owners, the Mets, and more. We like to have some fun with whatever is in the sports fan zeitgeist.

That came from an Underdog spokesperson after the letter landed, and it doubles as the company’s legal posture: this is satire, the same kind it aims at half the league. The website stayed live. The giveaway stayed on. Brooks kept hawking the thing, telling fans to “get yours when they come out” and “get reacquainted with the new foul baiting from the villain.” For a company that lives on attention, the math is friendly, since 100 giveaway copies cost almost nothing while a viral feud with a reigning MVP buys reach no ad budget matches. The threat, in that light, reads more like free promotion than a real cost.

The Cease-and-Desist Put the Game Back in the Spotlight

And that is where the strategy starts to look self-defeating. Before the letter, the game was a 100-copy gag aimed at fantasy diehards. After it, the flop debate was front-page sports news again, complete with replays of Gilgeous-Alexander tumbling and fresh columns asking whether he is breaking basketball.

The pattern has a name, the Streisand effect, after the singer whose attempt to bury photos of her home only drew millions of new views. Free-speech advocates argue the law was built to stop exactly this kind of muzzling; as the free-expression group FIRE lays out in its primer on parody and protected speech, mocking public figures sits near the core of what the First Amendment shields. A demand letter does not change that. It just adds a news hook.

The timing sharpens the irony. Gilgeous-Alexander is chasing a return to the NBA Finals through a bruising Western Conference series against Wembanyama’s Spurs, the stage where every theatrical fall gets dissected in slow motion. A quiet response might have let the joke die with its hundredth copy. The loud one tied his name to the punchline for another week.

None of this guarantees Underdog walks away clean. The player could still sue, and a judge could read the commercial packaging more narrowly than the parody defense hopes. But if the goal was to make people stop laughing about the flopping, the order to torch a novelty game has done the opposite, and the law meant to back him up has a long history of taking the comedian’s side.