Pain Treatment Center Sued For Using Former NFL Player’s Name And Image
Former National Football League defensive end and current co-host on ESPN, Jarred Allen, has filed a federal lawsuit against a pain treatment center and its director for using Allen’s name, image and statements without consent. Allen is asking the court to require that the defendants — Jeff Morton and Pain Free Life Centers of Michigan — permanently remove any reference to Allen from websites and social media and disgorge any profits earned from their unlawful conduct.
Allen alleges that the defendants used his image, personal health story and statements from a news article in a way that had the effect of leading consumers to believe that Allen received treatment from them and endorses them. Specifically, they placed an advertisement in a publication called Seen Magazine that prominently featured Allen throughout the ad.
After learning of the unconsented use of his publicity, Allen went on to the Pain Free Life Centers website and accessed its social media accounts. He found more uses of his likeness, alerted the defendants and the defedants removed the at issue references.
Allen is suing the defendants under various theories of liability. He seeks relief for false endorsement, false advertising and unfair competition in violation of a federal statute, as well as a violation of his rights of publicity under Tennessee’s Personal Rights Protection Act and common law. He has also claimed unfair competition in violation of Michigan common law.
Did the defendants engage in misleading advertising and produce a false advertisement? The advertisement in Seen Magazine includes Allen’s picture taking up half the page and begins with use of his name.
The first paragraph of the ad reads, “Former NFL Carolina Panthers defensive end Jarred Allen wasn’t going to let his broken foot sideline him from playing in his first Super Bowl.” If a reader only sees the image and reads the first paragraph, it is very likely that he believes Allen either went to the Pain Free Life Centers or is endorsing it as a brand.
Further, use of an athlete’s name, image and likeness in such a clearly commercial manner makes it difficult to present a compelling defense in a right of publicity claim. Allen makes it clear that he did not authorize the use and that the defendants never requested his consent. As such, even if the defendants were pulling information from news articles, that should not be sufficient to defend against the blatant use of Allen’s publicity rights in an advertisement.
Jarred Allen says that he has previously engaged a licensing company to manage his publicity rights. As such, that company will play an important role in helping establish a reasonable amount of damages for Allen to receive should he prevail in the litigation.