I Still Want to Be Like Mike

Michael Jordan recently enjoyed a payday nearing almost $9 million. But he didn’t earn it on a basketball court, a baseball diamond or even a golf course. This payoff came in a federal district court.

Jordan successfully sued Dominick’s, a Chicago area grocery chain when it placed this ad:

in a Sports Illustrated special commemorative issue celebrating Jordan’s induction in the Basketball Hall of Fame. The thing is, Dominick’s never bothered to get Jordan’s permission to use his name.

Jordan sued the grocer for violating his right of publicity – arguing that another person can’t profit by using Jordan’s name or likeness in an ad. The law is based on a the notion that Jordan has the right to control his name and likeness – meaning he and he alone gets to decide how it gets used, and if it gets used, how much he gets in return. Of course, there was nothing in the ad that suggested Jordan was endorsing Dominick’s and an argument can be made that a corporation has as much right to congratulate a celebrity as anyone else. But including those well wishes in an ad that offers $2 off on steaks is asking for trouble. And in this case, a lot of trouble.

But Jordan is involved in another lawsuit with Jewel-Osco arising from this ad in the same Sports Illustrated:  

This ad is a little different in my view, because it is more like a simple congratulatory note, and less like a true “buy my product” kind of print ad. I previously wrote on this very topic, wondering whether, in light of the Citizens United and Hobby Lobby decisions – in which the U.S. Supreme Court ruled corporations had First Amendment speech and religious rights —  a corporation had a First Amendment right to run a congratulatory message, free from liability. The answer for now, is apparently no.

The United Court of Appeals for the Seventh Circuit ruled that the Jewel-Osco ad was not protected by the First Amendment. That case is headed back to the trial court, for a hearing on the merits. Given the finding in the Dominick’s case, I suspect the folks at Jewel-Osco may have that deer in the headlights look that defenders often got when Jordan was driving to the hoop. And as far as a bigger point, advertisers may want to be careful about congratulating athletes. At least without their permission.