Judge tosses Mark Gastineau’s lawsuit against ESPN ’30 for 30′ over Brett Favre scene

A lawsuit filed by former New York Jets defensive end Mark Gastineau against ESPN and NFL Films over his depiction in the 30 for 30 documentary “The New York Sack Exchange” has been thrown out by a federal judge.

The news, first reported by Ben Horney in Front Office Sports, comes about one year after Gastineau formally filed suit over ESPN’s depiction of a confrontation he had with Hall of Fame quarterback Brett Favre in the film. The scene shows Gastineau, who from 1984 to the 2001 season held the NFL’s single-season sack record with 22, confront Favre over allegations that during the final game of the 2001 season, Favre intentionally slid down in the backfield to give Michael Strahan the single-season sack record with 22.5.

Footage from ESPN’s 30 for 30 shows Gastineau approach Favre at a memorabilia convention, before the interaction turned hostile.

“You hurt me, Brett,” the former Jets defensive end told Favre.

Gastineau’s lawsuit alleged he did not consent to being recorded during the encounter and also claimed ESPN and NFL Films producers selectively edited the footage to make the interaction seem more hostile than it truly was.

The judge did not agree with Gastineau’s assessment, dismissing the lawsuit with prejudice, meaning he cannot refile the same claims again, though the dismissal can be appealed. Judge Paul A. Engelmayer wrote that Gastineau, “consented, in writing, to the use of his name and likeness in the film and related promotional materials,” and, “that authorization was broad and encompassed Gastineau’s name and likeness as reflected in extrinsic footage, such as that of the encounter with Favre.”

Further, the judge wrote the encounter was “newsworthy” in the sense that the exchange “concerned a venerated NFL record.”

At this time, it is unclear if Gastineau will decide to appeal the dismissal.