IP Law Daily, PUBLICITY RIGHTS—S.D.N.Y.: Dethroned NFL sack leader is hit for another loss over portrayal by NFL Films and ESPN, (Mar 18, 2026)

By Matthew Hersh, J.D.

A heated confrontation between Mark Gastineau and quarterback Brett Favre was newsworthy, the court finds.

A prominent filmmaker that chronicled the exploits of four 1980’s NFL defensive lineman did not violate its contract with one of those linemen by including footage of him in an apparent angry confrontation with a quarterback he accused of tanking his sack record, the federal court for Manhattan has held. The court, in dismissing a lawsuit by the former NFL star, also found that the filmmaker did not impinge upon the football player’s rights to his name, image or likeness by including the footage because the controversy it portrayed, while perhaps “puerile,” was newsworthy (Gastineau v. ESPN Inc., No. 1:25-cv-02041-PAE (S.D.N.Y. Mar. 16, 2026)).

The lawsuit was brought by Mark Gastineau, a member of the famed defensive line for the New York Jets that during its heyday was known as The New York Sack Exchange. In 1984, Gastineau set the NFL single-season sack record with 22 sacks. But in 2001, in the last game of the season, Giants lineman Michael Strahan broke that record with a sack of Brett Favre at Giants Stadium. Gastineau has long believed, as have some others, that Favre “tanked” the play, deliberately taking a dive at Strahan’s feet and handing him the sack and the record. (Readers can decide for themselves by viewing one of the many videos of the play that are hosted on YouTube.) The apparent antagonism between the two players famously erupted into the open when Gastineau verbally confronted Favre about the play at a 2023 sports convention.

The principal target of Gastineau’s lawsuit is NFL Productions, the league-owned production company and venerable documentarian more commonly known to fans as NFL Films. In 2024, a year after the sports convention event, the film company paid Gastineau to participate in two filming shoots in connection with an ESPN “30 for 30” special on the vaunted 1980s defensive line. But when the special came out on ESPN, the film included not only clips from those two shoots but also video from the 2023 confrontation with Favre.

Gastineau sued NFL Films, along with the NFL, ESPN and several other defendants, over the use of the clip. His complaint alleged unfair competition under the Lanham Act and under the common law, unauthorized use of his name and likeness under New York law, and breach of contract.

The defendants moved to dismiss the claim, leading to this opinion.

Breach of contract. The court dismissed the breach of contract claim. As to all of the defendants other than NFL Films, the decision was easy: none of them were parties to the contract with Gastineau, so they could not—absent allegations of alter ego, which were not present here—be in breach. As to NFL Films itself, Gastineau argued that it was in breach because the filmmaker failed to get his prior approval to the clip in question, failed to protect his reputation and “wholesomeness” in making the film, and failed to give him a link to the film before its release. All of these arguments failed.

The court first found that the inclusion of the encounter with Favre did not constitute a “modification” of Gastineau’s appearance that required the lineman’s consent. Under the agreement, NFL Films had the right to modify any of Gastineau’s appearances by “modifying, varying, dubbing, adding to, subtracting from and integrating” them, provided that any such modification “must be approved” by Gastineau. The lineman argued that the addition of the Favre encounter constituted such a modification requiring his prior approval. The court disagreed. The only common-sense reading of the agreement, the court found, was that Gastineau had approval rights only to modifications of the two interviews he was required to give—not to the use of the Favre interview or, for that matter, “any other preexisting footage that the film’s producers might have weighed.” Gastineau’s reading, the court emphasized, “would have improbably given him sovereignty over the film’s treatment of such footage.” That was not a proper reading of the agreement.

Nor did NFL Films violate any agreement to protect Gastineau’s reputation or “wholesomeness,” the court found. The relevant provision of the agreement, the court noted, states that Gastineau (1) “acknowledged the great value of the goodwill associated with” the NFL and “the tremendous public respect and reputation for wholesomeness enjoyed by” it, and (2) “shall ensure that all elements of his Services shall be consistent with such goodwill and reputation for wholesomeness in all respects.” But these provisions, the court noted, “impose[d] obligations on Gastineau to conduct his appearances consistent with those reputational standards.” They did not, in turn, the court noted, “impose obligations on NFL Productions.” Breach of this provision, too, had not been adequately alleged by the football player.

Finally, the court found, the filmmaker did not violate any requirement to send Gastineau a link to the film before its release. This claim failed for two reasons. First, the court noted, while the relevant provision did entitle Gastineau to a link to the film, it did not entitle him to “a pre-release link.” Moreover, the court noted, Gastineau’s sole basis for claiming injury was that “the absence of a pre-release link disabled him from exercising his ostensible contractual right to editorial control.” But as noted earlier, the court emphasized, “Gastineau did not have any such right, except with respect to modifications of his two interview appearances.” Thus, the damages the complaint alleges were “not plausibly alleged to have been caused by the breach it claims.” This claim, too, would fail.

Right to publicity. The court also found that the complaint failed to state a claim that the filmmakers violated Gastineau’s right to publicity under New York law. Section 51 of the New York Civil Rights Law bars the unconsented use, for commercial purposes, of “the name, portrait, picture, likeness, or voice of any living person.” Gastineau stated no claim under that law, the court found, for two independent reasons.

First, the court found, the use of Gastineau’s name, image, or likeness was expressly approved by the lineman in the agreement—which granted the filmmaker “unlimited right throughout the world to use [Gastineau’s] name, voice, portrayal, performance, appearance, actions, likeness, and/or biographical information.” And the language of this provision, the court emphasized, was not limited to the two interviews Gastineau was obligated to participate in. Rather, the court noted, it extended to “the use of Gastineau’s identity ‘in connection with the Project’—i.e., the entire film.’” That included footage, the court reasoned, of Gastineau’s encounter with Favre.

Moreover, the court found, even if Gastineau had not consented to the use of the Favre encounter, the use was still protected because it was newsworthy. Under longstanding precedent, the court emphasized, the First Amendment prohibits the extension of the civil rights law to “reports of newsworthy events or matters of public interest,” even if those reports generate profits. “Gastineau’s public confrontation of Favre, although seemingly puerile,” the court noted, fit easily into this exception. Indeed, the court found, the clip was “newsworthy” in that “the participants were nationally recognized football stars (Favre is a member of the Pro Football Hall of Fame), the exchange between them concerned a venerated NFL record, the incident featured prominently in the film, and, as the film reflects, Gastineau’s aggressive conduct appears to have driven a wedge within the Sack Exchange quartet that was the subject of the film.” The New York law could not apply.

Unfair competition. Finally, the court found, the Lanham Act and common law unfair competition claims would also fail. For one thing, the court noted, even assuming that Gastineau’s name and likeness constituted a valid mark protectible under the applicable federal and common law, the filmmakers used these in the film “with Gastineau’s consent.” Moreover, the court noted, the complaint did not adequately plead that the film’s depiction of Gastineau’s encounter with Favre was likely to cause consumer confusion. “The inclusion of the brief footage of the Favre encounter,” the court noted, “does not bear on whether a viewer would associate Gastineau with the film.” And to the extent that the footage of the Favre encounter would lead a viewer to wrongly conclude that Gastineau harbored hard feelings towards Favre, the court noted, “any confusion on that point would not qualify as consumer confusion” under the Lanham Act or unfair competition under common law. These claims, too, would fail.

The Case is No. 1:25-cv-02041-PAE.

Judge: Engelmayer, P.

Attorneys: Christopher Joseph Cassar (Christopher J. Cassar, PC) for Mark Gastineau. Alexander Kaplan (Oppenheim & Zebrak, LLP) for ESPN Inc.

Companies: ESPN Inc.

Cases: PublicityRights Trademark NewYorkNews