Several years ago a Chicago grocery market chain congratulated Michael Jordan on his induction into the Basketball Hall of Fame, and now that company may have to pay.
A federal appeals court struck down an earlier ruling by a U.S. District Court ruling that Jewel-Osco supermarkets owed Jordan no money for an ad they ran in Sports Illustrated commemorative issues, which depicted a pair of basketball shoes with the No. 23 on the tongues. The text included the following sentence: "Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was 'just around the corner' for so many years."
Jordan sued Jewel for exploiting his image, and a U.S. District Court judge ruled that Jewel's ad was “noncommercial speech” protected by the First Amendment. But Jordan appealed that ruling and the 7th Circuit Court of Appeals in Illinois has just sided in his favor.
Whereas the District Court ruled against Jordan because there was no product that Jewel was promoting in the ad, the Court of Appeals determined that Jewel itself was boosting its brand by using the Chicago Bulls legend.
"The ad's commercial nature is readily apparent," the court's decision read. "It may be generic and implicit, but it is nonetheless clear. The ad is a form of image advertising aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career."
Jordan, who only has endorsements with Nike, Gatorade and Hanes, sued Jewel-Osco for $5 million. The case will go back down to the District Court for further deliberation.
Darren Rovell of ESPN writes that that this case could set a precedent for companies considering using images associated with an athlete without that athlete's consent.