March 31, 2026

Former Football Star Gets Sacked in Court

By Emily Poler

The Olympics have come and gone, baseball has begun again (yay spring!), and yet once again I find myself sitting down to write about football, which is pretty weird since I’m not a sports fan, much less a football fan, but anyway, here we are.

In this week’s edition of Emily writes about things related to a game she doesn’t care about, we’ll look at a recent decision out of the Southern District of New York where the Court dismissed Mark Gastineau’s complaint against ESPN and affiliated entities and the NFL and affiliated entities. 

Who is Mark Gastineau? Well, if you had asked me last week, I would have said he was some guy connected to the early-aughts reality television show The Gastineau Girls, which only managed to reside in some crevice of my brain for ~20 years because of that unusual surname. But really, Gastineau became famous as (you guessed it) a football player, a star defensive end for the New York Jets in the 1980s feared for his ability to “sack,“ or tackle the opposing quarterback for a loss of yardage. When Gastineau retired from football in 1988 under somewhat weird circumstances to do with his then-girlfriend Brigitte Nielsen, he held the NFL single-season sack record. Since retirement he’s added a few other, less savory records, with several arrests and convictions on various drug- and violence-related charges. 

This lawsuit is his latest bizarre maneuver. In the complaint, he alleges that in the final minutes of the 2001 season, Green Bay Packers quarterback Brett Favre willingly “gave up a sack” to New York Giants defensive end Michael Strahan (yes, the guy from GMA). This gave Strahan 22.5 sacks for the season, eclipsing Gastineau’s 1984 record of 22 sacks. For reasons that I cannot profess to understand, this has apparently eaten away at Gastineau in all the years since.

This apparently led to a tense in-person encounter in 2023 between Gastineau and Favre, which was filmed by ESPN for an episode of their “30 for 30” documentary series on “The New York Sack Exchange,” the 1980s Jets defense. Although the two initially shook hands in that meeting, Gastineau was “visibl[y] upset and emotional with Favre,” and accused Favre of giving the sack to Strahan in order to take the record away from Gastineau. The documentary, when it aired on ESPN, included a sit-down interview with Gastineau in which he said that “sack should have been disallowed,” and played a clip of Gastineau’s 2023 encounter with Favre. 

Gastineau was not happy about the latter. He sued ESPN, as well as the NFL, claiming he had not authorized the use of his image in the encounter with Favre and the film omitted context showing a lack of animosity between the two. Based on this, Gastineau sued for unfair competition under both federal and state law and violation of his right of publicity under New York law. Gastineau also sued Defendants for breach of the talent release agreement he executed prior to participating in the sit-down interview.

The Court was not particularly impressed with any of these claims. Put another way, it dismissed all of them. On the right of publicity claims, the Court found that Gastineau gave Defendants the right to use his name and likeness in the talent agreement. Here, Gastineau argued that the release was limited to the sit-down footage shot specifically for the documentary, and not to his earlier encounter with Favre. The Court found that the release covered both, also writing that even if the release didn’t cover Gastineau’s encounter with Favre, the use of that footage fell within the “newsworthiness” exception to the right of publicity. This doctrine limits the application of New York’s right of publicity to matters of public interest; in this instance, in a nice turn of phrase, the Court wrote: “Gastineau’s public confrontation of Favre, although seemingly puerile, clears this low bar.” Ouch.

The Court also rejected Gastineau’s unfair competition claims. Here, Gastineau would have had to show, among other things, a protectable mark; that Defendants used that mark without consent; and that consumers were likely to be confused. The Court found that even if Gastineau’s name, image and likeness could function as a trademark and were thus protectable, by signing the release he gave Defendants the right to use them. 

As for Gastineau’s assertion that viewers would be confused into thinking that Gastineau’s interaction with Favre was hostile when, in fact “his attitude was conciliatory,” well, the Court itself was rather puzzled because this is not the type of consumer confusion at the heart of unfair competition claims. (These types of claims are concerned with figuring out whether a consumer might think product A comes from Company B instead of Company A). So, uh, duh. 

Well, this has all been pretty interesting and somewhat amusing, although to show kindness toward Gastineau it must be noted he is suffering from various forms of dementia, possibly related to having taken so many hits to the head in his football. And the lesson for us all here, apart from not choosing dangerous lines of work, is to pay attention when signing a talent release and being a subject in a documentary, as the release gives the producers broad rights and there are First Amendment protections for documentaries. If you have any fears about how you’re going to appear, don’t think you can redress them later, because you can’t successfully sue the producers if you don’t like the way you’re portrayed.