ESPN, the NFL and other defendants named in retired New York Jets defensive end Mark Gastineau’s $100 million breach of contract and false endorsement lawsuit argue in a new motion to dismiss the case that the five-time Pro Bowler’s legal theories are contradicted by contracts he signed and defy basic principles of both the right of publicity and the First Amendment.
In March, Gastineau filed a complaint in the Southern District of New York accusing ESPN and the NFL of using unauthorized video of him confronting retired Hall of Fame quarterback Brett Favre at a sports memorabilia show in 2023. The video appears in “30 for 30: The New York Sack Exchange,” which centers on Gastineau and teammates who were part of the highly-vaunted Jets’ defensive line in the early 1980s.
The 30 for 30 includes a clip of Gastineau accusing Favre of “falling down” in the final minutes of the 2001 regular season, when New York Giant defensive end Michael Strahan sacked Favre and broke Gastineau’s NFL record for most sacks in a single season. Gastineau, 68, says he has been ridiculed on social media over how he is portrayed. He says he never consented to the filming of the Favre confrontation. Gastineau also accuses ESPN and the NFL of placing him in a false light by omitting video of Gastineau and Favre shaking hands at the end of their conversation.
Through a brief filed by Alexander Kaplan and other attorneys from Oppenheim + Zebrak on July 3, ESPN and the NFL assert Gastineau’s case has numerous flaws.
First, Gastineau signed contracts with NFL Films that—ESPN and the NFL maintain—negate his claims. Of central importance Gastineau signed a talent agreement which, in exchange for Gastineau receiving compensation, granted NFL films the right to his NIL and other aspects of his right of publicity, including his voice, actions and biographical information. The agreement also contemplated Gastineau waiving any right to approve how he is…
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