Mark Gastineau Claims $25M in Damages in ESPN, NFL Lawsuit

Retired New York Jets DE Mark Gastineau has sued ESPN, the NFL and other defendants for allegedly using unauthorized video of him confronting retired Hall of Fame quarterback Brett Favre at a sports memorabilia show two years ago. The case will face significant hurdles, particularly because Gastineau and Favre are public figures whose interaction was recorded in front of a group of people. 

Gastineau’s complaint, filed in the Southern District of New York on Tuesday, contains breach of contract, breach of good faith, unfair competition and privacy and endorsement-related claims under the federal Lanham Act and the New York Civil Rights Law. Gastineau, through attorney Christopher J. Cassar, demands at least $25 million in damages and an injunction blocking ESPN from using the video.

As of this writing, the clip at the center of the dispute is available on YouTube. It reflects an excerpt of ESPN’s 30 for 30: The New York Sack Exchange, which first aired last December:

As shown in the video, Gastineau, who in 1984 notched a record 22 sacks in an NFL season, repeatedly told Favre that the QB had “hurt” him. Gastineau objected to how Favre, as Gastineau put it, “fell down” during a game in 2001 in which New York Giants defensive end Michael Strahan set a new sack record (22.5 sacks). Gastineau appears emotional, even distraught. The complaint contends Gastineau has “been attacked on social media with ridicule, scorn and contempt” over how he comes across in the video.

The video is also incomplete, Gastineau contends, and arguably places him in a false light. Gastineau says ESPN opted to not show him and Favre “shaking hands at the commencement of the conversation,” a sequence that might have portrayed Gastineau more favorably.

The Gastineau-Favre exchange occurred at the Chicago Sports Spectacular, held at the Donald E. Stephens Convention Center in Rosemont, Ill., from Nov. 17 to 19, 2023. The public was invited to attend. According to the event’s organizers, there were more than 350 sellers of sports and non-sports memorabilia and collectibles. The event also featured “famous athletes, Hollywood stars and other interesting TV personalities” who signed autographs and took pictures. Peyton Manning, Jerry West, Lawrence Taylor and Gastineau were among the high-profile sports figures invited. 

Although an autograph signing is hardly a private event, and although both Gastineau and Favre are recognizable, especially at an event for sports fans and collectors, Gastineau insists his interaction with Favre should have enjoyed an expectation of privacy. Gastineau asserts his discussion with Favre took place “behind a curtain in an area of the show not opened to the public” and thus the discussion ought to be regarded as a “private encounter.” Gastineau also says he “never gave permission or consented” to either the recording or its publication, which, Gastineau argues, should be deemed a false or misleading representation of events that is likely to cause consumer confusion.

Gastineau’s complaint references him signing a contract with ESPN in January 2024, a couple of months after the collectibles show. As described in the complaint, Gastineau was paid $10,000 to perform “on-camera appearance services” for the 30 for 30. The services included a sit-down interview and a filming session at the New York Stock Exchange. Gastineau says the contract does not reference his encounter with Favre. He also claims that the contract states Gastineau must approve of any modifications in how he is depicted, and that he never approved.

The NFL’s involvement in Gastineau’s case mainly stems from NFL Films contributing to the release of the 30 for 30; NFL Films is depicted as producing and publishing the Gastineau episode. Both ESPN and the NFL declined to comment to Sportico on Gastineau’s filing. 

The defendants will answer Gastineau’s complaint and motion for its dismissal. Expect several defenses.

For starters, while Gastineau says his conversation with Favre was in private, it’s clear from the video that at least seven other people—including a camera operator—were in their immediate presence, and they were watching and listening. Gastineau and Favre were also in a setting where there were likely other people with cameras on their phones. It’s not as if ESPN secretly recorded a meeting in a home between Gastineau and Favre or a phone conversation between them. The defendants can insist that the discussion was not in a private setting and did not give rise to an expectation of privacy.

Another defense is the First Amendment. The exchange with Favre also newsworthy, meaning of interest to the public and a recording for which may be constitutionally protected. The debate over whether Favre took a dive in 2001 has generated much fodder over the years. Gastineau confronting Favre about this topic and trying to get him to admit, on camera, to taking a dive is of interest to many. 

30 for 30 also has editorial discretion in which content is included and omitted. While Gastineau suggests the omission of his alleged handshake with Favre alters the analysis, a film company isn’t obligated to show the entirety of an event. 

Gastineau’s contract with ESPN was not included as an exhibit to the complaint, so it’s difficult to verify Gastineau’s depiction of the deal. It’s possible the contract contains language that the complaint doesn’t mention and that would boost ESPN’s defenses. For instance, there might be wording that says ESPN can use other footage of Gastineau and that the contractual reference to modification concerned his sit-down interview and filming session.

Gastineau is also experienced around a camera—he’s a famous player who has interacted with journalists and broadcasters many times, and he’s been on national talk shows, including those hosted by Howard Stern and Dick Cavett. If Gastineau was an ordinary person, he might have a more persuasive contention that he wasn’t on notice, but he’s a former NFL star who sought the limelight. 

Gastineau, 68, had a distinguished NFL career; he was the league’s defensive player of the year in 1982 and was a five-time Pro Bowler. Gastineau and fellow Jets defensive linemen Joe Klecko, Marty Lyons and Abdul Salaam earned the nickname the “New York Sack Exchange” for their dominance in the early 1980s. Gastineau is a member of the Jets Ring of Honor, but thus far has been failed to win entry into the Pro Football Hall of Fame. 

Eight years ago, Gastineau disclosed he suffers from significant health problems, including dementia, Alzheimer’s disease and Parkinson’s disease. These serious health issues might have played a factor. 

Even if Gastineau proves liability, it could prove difficult for him to establish $25 million in damages. Gastineau doesn’t claim the video is defamatory, which it isn’t since it features him talking. Gastineau argues the video has caused him reputational damage, which in turn hurts his chances for endorsement deals and other income streams connected to his right of publicity.

It’s not clear whether he has lost specific endorsement deals or how much money he typically earns in endorsements. If his damages are mainly about being criticized on social media, a court might be skeptical that such an injury warrants substantial damages and is not more along the lines of an inconvenience.

The case is before U.S. District Judge Paul A. Engelmayer, who is also presiding over a lawsuit brought by a Chicago Bears fan and a Seattle Seahawks fan who claim the NFL’s policy barring teams from using Bluesky violates antitrust law.