By Nicholas Stegmann and Desmond W. Bouteiller
A federal court dismissed a lawsuit filed by former NFL player Mark Gastineau over the use of his name and likeness in an ESPN 30 for 30 documentary. Gastineau challenged his portrayal in The New York Sack Exchange, arguing that certain footage was used without authorization and misrepresented a public interaction with Brett Favre. The court ruled in favor of the defendants, finding the use fell within the scope of an existing agreement and did not support the claims.
Background
Mark Gastineau played as a defensive end for the New York Jets from 1979 to 1988. In 1984, he set what was then the NFL record for most sacks in a single season, recording 22 sacks. His record stood for nearly two decades until the 2001 season, when New York Giants defensive end Michael Strahan recorded 22.5 sacks. The validity of Strahan’s record has been a source of controversy, with many observers, including Gastineau, contending that Brett Favre purposely fell to allow Strahan to record the final sack needed to break the record.
On November 18, 2023, Gastineau and Favre encountered each other at the Chicago Sports Spectacular convention. Gastineau was accompanied by a film crew and wore a microphone. After initially shaking hands, the two had a tense verbal exchange in which Gastineau accused Favre of intentionally submitting a sack, declaring among other things, “You hurt me, Brett.” The meeting concluded with Favre being walked away from the situation. In the documentary, former teammate Marty Lyons illustrated that this encounter was the final straw in his willingness to defend Gastineau.
Two months after the convention encounter, on January 24, 2024, Gastineau entered a “talent agreement” with NFL Productions. Under this agreement, Gastineau was paid $10,000 to provide on-camera interview services for the documentary, including a solo sit-down interview and a group appearance at the New York Stock Exchange. The agreement also granted the National Football League (NFL) and related entities broad rights to Gastineau’s name and likeness in connection with the film and any promotion of it in any media without additional compensation.
On December 13, 2024, ESPN aired 30 for 30: The New York Sack Exchange, a 53-minute documentary highlighting the Jets’ defensive line group of the early 1980s, known as the “New York Sack Exchange”, consisting of Gastineau, Joe Klecko, Marty Lyons, and Abdul Salaam. Near the documentary’s conclusion, the film addressed Gastineau’s sack record, playing footage of Brett Favre’s sack by Michael Strahan, clips of Gastineau’s interview disputing the record, the convention confrontation, and Lyons’ reaction to Gastineau’s behavior.
Claims and Dismissal
Gastineau filed his initial lawsuit on March 11, 2025, and thereafter filed an Amended Complaint. He brought four claims against the defendants: unfair competition under Section 43(a) of the Lanham Act, unauthorized use of his name and likeness for advertising purposes under New York Civil Rights Law Sections 50 and 51, common law unfair competition, and breach of contract. He sought $25 million in damages and injunctive relief, arguing the defendants had included the convention footage with Favre without his approval and had falsely omitted the initial handshake and subsequent apologies, thereby portraying him in a negative light.
The court dismissed the breach of contract claim on multiple grounds. First, it found the claim could only proceed against NFL Productions, the sole party to the talent agreement, and dismissed it as to all other defendants. As to NFL Productions, the court analyzed Gastineau’s contention that Section 5 of the talent agreement required his approval of any modifications to the film, convention footage included. The court rejected this argument, finding that the approval right in Section 5 was limited to modifications of Gastineau’s own performance under the agreement and did not extend to the pre-existing footage such as the convention encounter. The court further dismissed claims of breach of sections 9, 15, and 16 of the agreement, finding them either inapplicable or legally insufficient.
The New York Civil Rights Law claims fared no better. The court identified two independent grounds for dismissal. First, Gastineau had expressly consented in writing to the use of his name and likeness in the film through the broad authorization in Section 2 of the talent agreement, which covered use of his identity “in connection with the project” in any media worldwide. Second, even absent such consent, the footage from the convention center fell within the “newsworthiness” exception to the statute, given the participants were nationally recognized NFL figures, the dispute concerned a celebrated league record, and the incident bore directly to the subject of the documentary.
Finally, the Lanham Act and common law unfair competition claims were dismissed because Gastineau had consented to use of his identity in the film and because the Amended Complaint failed to adequately plead consumer confusion. The court observed that any confusion a viewer might experience about Gastineau’s attitude towards Favre would not constitute actionable trademark confusion. The common law unfair competition claim failed additionally because no facts supported a finding of bad faith given that the defendants had acted within the contractual right Gastineau himself had granted them.
References
Gastineau v. ESPN Inc., et al., No. 25 Civ. 2041 (PAE) (S.D.N.Y. Mar. 16, 2026). https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv02041/638444/42/
Lanham Act § 43(a), 15 U.S.C. § 1125(a).
New York Civil Rights Law §§ 50–51.
Nicholas Stegmann is a Sport Management instructor at Columbia College in Columbia, Missouri. He is also a student in the Sport Management doctoral program at Troy University.
Desmond Bouteiller is an instructor at Olds College in Olds, Alberta, Canada. Desmond is also a student in the Sport Management Ph.D. program at Troy University.
