Former New York Jets DE Mark Gastineau has filed a lawsuit against ESPN, the NFL, and other parties for reportedly using unapproved footage of him having an encounter with retired Hall of Fame quarterback Brett Favre at a sports memorabilia event two years prior. The case will encounter major challenges, especially since Gastineau and Favre are public figures and their interaction was documented in the presence of an audience.
Gastineau’s lawsuit, submitted in the Southern District of New York on Tuesday, includes allegations of breach of contract, breach of good faith, unfair competition, and claims related to privacy and endorsement under the federal Lanham Act and the New York Civil Rights Law. Gastineau, via lawyer Christopher J. Cassar, seeks at least $25 million in damages along with an injunction prohibiting ESPN from utilizing 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
In the video, Gastineau, who recorded a remarkable 22 sacks in an NFL season in 1984, continuously mentioned to Favre that the quarterback had “hurt” him. Gastineau criticized Favre for how he, according to Gastineau, “went down” during a 2001 game in which New York Giants defensive end Michael Strahan established a new sack record (22.5 sacks). Gastineau seems to be feeling emotional, even very upset. The grievance claims that Gastineau has faced “ridicule, scorn, and contempt” on social media regarding his depiction in the video.
Gastineau argues that the video is also incomplete and may misleadingly portray him. Gastineau states that ESPN chose not to air the moment of him and Favre “handshaking at the start of the discussion,” a scene that could have depicted Gastineau in a better light.
The Gastineau-Favre trade took place during the Chicago Sports Spectacular at the Donald E. Stephens Convention Center in Rosemont, Ill., from November 17 to 19, 2023. The community was welcomed to participate. As stated by the event’s organizers, over 350 vendors offered both sports and non-sports memorabilia and collectibles. The occasion included “well-known athletes, movie stars, and other intriguing TV figures” who signed autographs and posed for photos. Peyton Manning, Jerry West, Lawrence Taylor, and Gastineau were some of the renowned athletes who received invitations.
Even though an autograph signing is not truly a private occasion, and even though Gastineau and Favre are well-known figures, particularly among sports enthusiasts and collectors, Gastineau argues that his encounter with Favre ought to have had an expectation of privacy. Gastineau claims that his conversation with Favre happened “behind a curtain in a portion of the show not accessible to the public,” and therefore, it should be seen as a “private meeting.” Gastineau also claims he “never granted permission or consent” for the recording or its release, which, according to Gastineau, should be considered a false or misleading depiction of events likely to confuse consumers.
Gastineau’s grievance mentions that he signed a contract with ESPN in January 2024, shortly after the collectibles event. According to the complaint, Gastineau received $10,000 for providing “on-camera appearance services” for the 30 for 30. The services comprised a seated interview and a recording session at the New York Stock Exchange. Gastineau states that the agreement makes no mention of his meeting with Favre.
The NFL’s role in Gastineau’s situation primarily arises from NFL Films’ participation in the release of the 30 for 30; it is shown that NFL Films produced and released the Gastineau episode. Both ESPN and the NFL chose not to provide comments to Sportico regarding Gastineau’s filing.
The defendants will respond to Gastineau’s complaint and request for its dismissal. Anticipate multiple defenses.
To begin with, although Gastineau claims that his chat with Favre took place privately, it’s evident from the video that at least seven other individuals—one of whom was a camera operator—were nearby, observing and hearing everything. Gastineau and Favre were situated in an environment where it was probable that other individuals had cameras on their phones. ESPN didn’t covertly capture a meeting at a house between Gastineau and Favre or a phone call between the two. The defendants may argue that the conversation did not occur in a private environment and did not create an expectation of privacy.
An additional justification is the First Amendment. The interaction with Favre is also significant, which makes it pertinent to the public and a record that might be constitutionally safeguarded. The discussion about whether Favre intentionally underperformed in 2001 has produced a lot of material over the years. Many find it intriguing that Gastineau is confronting Favre on this issue, attempting to get him to confess on camera about taking a dive.
30 for 30 also possesses editorial authority regarding which content is included and which is left out. Although Gastineau argues that leaving out his supposed handshake with Favre affects the evaluation, a film company is not required to display the complete event.
Gastineau’s agreement with ESPN was not attached as an exhibit to the complaint, making it challenging to confirm Gastineau’s portrayal of the arrangement. The contract may include wording not referenced in the complaint, which could strengthen ESPN’s defenses. For example, there could be language indicating that ESPN is allowed to use additional footage of Gastineau and that the contractual mention of modification related to his interview and filming session.
Gastineau is likewise familiar with a camera—he’s a well-known athlete who has engaged with reporters and broadcasters numerous times, and he has appeared on national talk programs, including those led by Howard Stern and Dick Cavett. If Gastineau were just an average individual, he could have a stronger argument that he wasn’t aware, but he’s a former NFL star who pursued the spotlight.
Gastineau, 68, enjoyed a notable NFL career; he earned the league’s defensive player of the year title in 1982 and was selected to the Pro Bowl five times. Gastineau and his Jets defensive line teammates Joe Klecko, Marty Lyons, and Abdul Salaam acquired the nickname the “New York Sack Exchange” due to their dominance during the early 1980s. Gastineau is part of the Jets Ring of Honor, but so far has not succeeded in gaining entry into
Eight years prior, Gastineau revealed that he experiences serious health issues, such as dementia, Alzheimer’s disease, and Parkinson’s disease. These significant health problems could have contributed.
Even if Gastineau can show liability, it may be challenging for him to prove $25 million in damages. Gastineau doesn’t assert that the video is slanderous, as it isn’t, since it shows him speaking. Gastineau claims that the video has harmed his reputation, which subsequently negatively impacts his opportunities for endorsement contracts and other revenue sources tied to his right of publicity.
It’s uncertain if he has lost particular endorsement contracts or what his usual earnings are from endorsements. If his injuries primarily stem from being criticized on social media, a court may doubt that this harm justifies significant damages and view it more as a mere inconvenience.
The matter is under U.S. District Judge Paul A. Engelmayer, who is also overseeing a lawsuit filed by a Chicago Bears supporter and a Seattle Seahawks supporter alleging that the NFL’s rule preventing teams from utilizing Bluesky breaches antitrust law.