Sports Law Blog
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Friday, November 03, 2006
Drew Brees Wants No Part in his Mother's Political Campaign
New Orleans Saints quarterback Drew Brees has told Mina Brees, his mother and an Austin attorney, to stop using his picture in TV commercials while she runs as a Democrat for a spot on Texas' 3rd Court of Appeals that reviews civil and criminal cases. The commercial in question includes a picture of Drew Brees in a San Diego Chargers uniform (his former team) and notes Mina Brees' football ties, which includes being the daughter of a successful high school coach and the sister of a former University of Texas quarterback.
Drew says he called his mother and asked her to stop running the ads, and when she did not return his calls or stop using his image, his agent sent her a letter threatening legal action. According to Drew, the commercials were sending a message of, " 'If you don't know much about the election, vote for me because I know Drew' . . . and that is a shame because the political process should be decided on your credentials." But according to Mina, "everything in the ad was true" and she did not anticipate it upsetting her son. She said the connection to football is relevant to her campaign because through sports, her father, Ray Akins, taught her a strong work ethic that she would bring to a career as a judge. Mina says a version of the spot that omits references of Drew was taped last week and sent to TV stations last Friday.
I don't care to play the role of family therapist with this post. Instead, I want to focus in on Drew's agent "threatening legal action." In addition to sports law, I teach torts and this would make a perfect hypothetical exam question for my Torts II class where we discuss one of my favorite areas of the law, the right of privacy and defamation.
Drew would lose on defamation because there is no false statement in the ad (i.e it's a photo of Drew and Drew is actually Mina's son), nor is there anything being said about Drew that would be considered "defamatory" (i.e. that would subject Drew to hatred, ridicule, or contempt).
There are three potential right of privacy claims to analyze here: Right of publicity; misappropriation; and false light. Right of publicity is the "use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage." The misappropriation tort protects against intrusion upon an individual's private self-esteem and dignity (similar to a public disclosure of private facts claim), while the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. Here, there is no pecuniary loss to Drew and Mina has not reaped any financial gain from the use of Drew's identity. It would also be difficult for Drew to establish that Mina's use of his identity in trying to get elected as a judge resulted in any "commercial" advantage. Because Drew is a famous NFL quarterback and public figure, misappropriation would not be successful either because Drew would probably have a hard time convincing a judge or jury that the use of his name in the public arena intruded upon his private self-esteem and dignity resulting in emotional harm. A public disclosure of private facts claim fails for the same reason, and in addition because there are no "private" facts being disclosed in the ads.
Drew's best claim against his mother would probably be false light. For this claim, it is not necessary that the statements be defamatory; all that is required is that the defendant placed the plaintiff in a false light that would be "highly offensive to a reasonable person." Although the statements in and of themselves may be true, a cause of action can be established if the statement implies untrue and unfavorable acts taken, or views held, by the plaintiff. Here, for example, Drew could say that the use of his identity in the ads implies that he supports his mother's campaign, when in fact he does not. There is one big problem however....Texas, like some jurisdictions, doesn't recognize a separate cause of action for false light.
Oh well Drew, I tried my best....