By Jim Moss
The plaintiff was a gifted BMX rider who at age 11 joined Team Diamondback in 2007. No written agreement was entered into between the rider and the bicycle manufacturer, Raleigh, which owned Diamondback Bikes and Team Diamondback at that time. The plaintiff received bikes and equipment from Raleigh but, did not receive any compensation.
Raleigh used images of the plaintiff on its Website, catalogs and advertisements. The Website included a biography of the plaintiff that emphasized his diminutive statute. The plaintiff would send photographs to Raleigh to be used on the Website. He also complained when the Website was not updated to show his switch to bigger bikes.
Sometime in 2009 or 2010 the plaintiff broached the issue of compensation with Raleigh. Raleigh discussed limited financial support, but “hinted” at a brighter future for the plaintiff. In 2010, Raleigh agreed to provide the plaintiff with $2,000 in travel funds.
In 2011, Raleigh signed the plaintiff to a contract paying him $416.66 a month with up to $5,000 in incentive bonuses. The agreement was signed by the plaintiff’s father. Raleigh received the right to unlimited use of the plaintiff’s name and likeness from the agreement.
While at Team Diamondback, the plaintiff was approached by several other possible bike sponsors that the plaintiff turned down. He eventually picked up other sponsorships for accessories and sports drinks. At no time was the plaintiff’s relationship with Raleigh exclusive.
In June of 2012, the plaintiff left Team Diamondback and picked up KHE bikes as a sponsor. KHE bikes paid the plaintiff a $30,000 annual salary and an additional $8,000 for travel expenses. A year later, the plaintiff sued Raleigh claiming seven different claims.
Count 1: Unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A;
Count 2: Unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11;
Count 3: Defamation;
Count 4: Negligent misrepresentation;
Count 5: Unjust enrichment;
Count 6: Promissory estoppel;
Count 7: Intentional misrepresentation.
The Federal District Court first looked at Count 3, the defamation claim. Under New York Law, to prove defamation, the plaintiff must prove the defendant “was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.” To be defamatory a false statement must hold the plaintiff up to “scorn, hatred, ridicule or contempt” in the mind of a respectable part of the community.
The court could find nothing in the facts which placed the plaintiff in a position to be defamed. Using the term “kid” in referring to the plaintiff on Raleigh’s website was the same as referring to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.”
The Court found none of the “statements” on the Website were false, they at best were dated. The biography was true for a particular time in the plaintiff’s life. Even though dated, the plaintiff’s date of birth was on the Website so people could determine the plaintiff’s age and not confuse the plaintiff with “Peter Pan or Benjamin Button.”
Showing the plaintiff riding a 16-inch bike after he had grown into larger bikes was also not defamatory. The photographs did not cast a demeaning or derogatory light on the plaintiff. There was no proof that Raleigh published the photographs with any intent other than to show the plaintiff was an accomplished rider.
The next count reviewed by the court was the first count, which was based on a statute. Massachusetts has a statute, like many states, where it is actionable if someone’s name or likeness is used without their written permission for commercial purposes. Raleigh argued the emails between the parties constituted a written agreement. However, the court looked at whether the plaintiff suffered any damages. The emails from the plaintiff complained that not enough of his photographs were posted on the Website. The plaintiff also was flown by Raleigh to its headquarters for a photoshoot in 2008. The plaintiff argued that Raleigh benefited from his photographs on the website. However, that is not proof of damages. The plaintiff could not prove damages from the use of his images on the website.
Throughout the decision, the court looked at the issue of damages and how the plaintiff misinterpreted the law. The plaintiff argued that his damages should be based on the fact that Raleigh made a lot of money from using his likeness in its advertising. The court found this was incorrect. Damages for all the claims made by the plaintiff had to be based on what the plaintiff lost, not what the defendant gained.
Counts IV, VI and VII plead Intentional/Negligent Misrepresentation, and Promissory Estoppel claims. To sustain these claims the plaintiff had to rely on a false statement made by Raleigh, which induced the plaintiff to do something or was relied upon by the plaintiff to do or not do something. The plaintiff must prove that he was worse off than before the misrepresentation to be successful on these claims.
The plaintiff could not produce any evidence that he was induced by Raleigh to do or not to do something because he was not exclusive to Raleigh and eventually picked up other sponsors. Nor could he prove any damages suffered.
The fifth Count, Unjust Enrichment also failed. The plaintiff argued that Raleigh benefited greatly from promoting the plaintiff while compensating him “minimally” for the plaintiff’s efforts. This failed because the plaintiff’s relationship with Raleigh was voluntary. He received some benefits from this relationship and could not prove he was forced into any position. The court stated, “If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities.”
The last count was Count 2 for Deceptive Business Practices based on Massachusetts statute and was dismissed with one statement. This claim failed because the plaintiff could not prove Raleigh’s actions were immoral, unethical, oppressive or unscrupulous let alone proved substantial injury.
Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154
Jim Moss is the founder of www.recreation-law.com
