ESPN, NFL say Mark Gastineau’s lawsuit is a non-starter

Mark Gastineau may want $100 million, but according to ESPN and the NFL, he doesn’t have a legal leg to stand on.

In a newly filed motion to dismiss, first reported by Sportico, ESPN and the league say the former New York Jets star’s breach of contract and false endorsement lawsuit completely falls apart under contracts he willingly signed, and that the First Amendment protects every frame of footage he’s now attacking.

At the center of their defense is a talent agreement Gastineau signed with NFL Films. In exchange for payment, Gastineau gave the production company broad rights to use his name, image, likeness, voice, actions, and biography. In short, the exact things he now claims were misused. The deal explicitly stated that NFL Films could edit or modify content however it saw fit, and Gastineau waived any right to approve his portrayal or the final product.

In their filing, the defendants describe Gastineau as having granted them “unfettered rights of publicity, including with respect to the footage about which he is complaining.”

In other words, ESPN and the NFL argue the contract alone should end the case.

But their argument doesn’t stop at contracts.

Gastineau’s lawsuit stems from ESPN’s 30 for 30 documentary The New York Sack Exchange, which turned out to be less memorable for its content than for the controversy surrounding its trailer.

That trailer — released in December — featured a tense exchange between Gastineau and Brett Favre at a memorabilia show in Chicago. It depicted a cold, awkward confrontation over Favre’s infamous decision to take a soft sack from Michael Strahan in 2001, allowing Strahan to break Gastineau’s single-season sack record. Favre greeted Gastineau with a smile and an outstretched hand. Gastineau didn’t reciprocate.

And that moment — or more specifically, the lack of a handshake — is central to Gastineau’s damages claim. According to TMZ, Gastineau alleges that ESPN “intentionally and maliciously did not publish” footage of the two men shaking hands after the exchange. Without that context, he says, the confrontation looked far more hostile than it really was, leading to backlash on social media and harm to his reputation.

To make matters more complicated, Favre has stated that he believes the entire scene was a setup, while accusing Gastineau, ESPN, and NFL Films of staging the encounter with cameras already rolling. Gastineau, for his part, claims he never gave ESPN permission to film the interaction in the first place.

Gastineau will have a chance to respond. The case is currently before U.S. District Judge Paul A. Engelmayer.