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Cleveland Indians pitching Trevor Bauer is suing a Louisiana-based trainer for unauthorized use of his likeness and image through posts on his website, biomechanical breakdowns on YouTube and multiple mentions in a program that pledges significant gains in pitching velocity, according to court documents obtained by Yahoo Sports.
The suit, filed June 4, accuses Brent Pourciau, who owns and runs the training academy TopVelocity, of violating state and federal laws that intend to protect individuals’ right of publicity. Perhaps more than any player in baseball, Bauer has been an adherent to, and evangelist for, analytics-based learning in pitching. “Bauer has established a well-recognized and valuable identity arising from his baseball pitching abilities and other professional accomplishments,” the suit says, arguing that Pourciau’s use of his likeness was an implied endorsement of TopVelocity and thus its product line.
“It’s important to me that people use the internet as a tool to learn,” Bauer told Yahoo Sports in an interview. “I wish I had YouTube when I was growing up, and it’s the reason I have videos on my website. I want people to understand baseball and pitching better, but I also want to make sure they don’t think I’m endorsing something that I wasn’t.”
Tiger Woods, Muhammad Ali and Joe Montana are among the scores of athletes to invoke their right of publicity in lawsuits. The most famous case involved Michael Jordan, who won an $8.9 million judgment against Dominick’s, a Chicago-area grocery store, which had used his name, number and a silhouetted basketball player in an advertisement that included a $2-off coupon for a steak inside a commemorative Sports Illustrated issue.
The growth of baseball’s biomechanical-analysis subculture adds a twist to the classic intellectual-property case. In an interview with Yahoo Sports, Pourciau said his references to Bauer were for educational purposes, not commercial. The 41-year-old Pourciau, a former college and independent-ball pitcher who has worked with the Tampa Bay Rays and Los Angeles Dodgers organizations as well as former major league pitcher David Aardsma, says that his 3X program can help pitchers gain 5 to 10 mph on their fastballs in 16 weeks – a claim Bauer and others believe to be unrealistic and potentially dangerous.
“This is an industry problem,” Pourciau said. “If it was just me, or something I maliciously did and felt guilty, I’d be hiding it. But I only did what the industry has been doing for years, which is talking about elite pitchers and analyzing them.
“I think this should fall under education. I know it’s commercial. Well, you’re making money. [Expletive], we’re all making money. If I was up there making fun of Trevor in comedy, I could be protected by parody. All I can do is educational. If you can prove your product is strictly there to educate, you should be protected for using someone’s likeness.”
The case – in which Bauer is requesting damages under the federal intellectual-property law, the Lanham Act, as well as through the states of Louisiana and Texas, where he lives – could hinge upon whether the use of Bauer’s likeness is seen as educational, as Pourciau contends, or as part of a design to sell TopVelocity products.
“The way I look at it is it really was trying to get people to sign up for the program and make money on it,” said Edward Rosenthal, an intellectual-property expert and partner at the Frankfurt Kurnit Klein & Selz law firm in New York. “It wasn’t just this really interesting subject out there. If you use the name or likeness of a person to help sell your product or your service, you’re going to have to pay for it. The fact that it has an educational point of view is nice, but it’s not going to carry the day.”
In a number of places on the TopVelocity website the use of major league players’ likenesses blends with the sale of 3X products. One piece, headlined 10 Steps to Pitch Like Marcus Stroman, includes four pictures, three animated GIFs and a YouTube video of the Toronto Blue Jays starter. Underneath the video, it says: “Now that you have a full list of steps to pitch like Marcus Stroman, you will need a program that gives you the roadmap to implement each step. This is why I developed the 3X Extreme Pitching Velocity Program.” Clicking the buy-now button that follows the paragraph offers the 3X program for $497.
Similarly, a TopVelocity logo is overlaid on a photo collage of Aroldis Chapman, the hardest-throwing pitcher in baseball history. Pourciau, whose program advocates Olympic-style weightlifting, asked readers “to help make this photo go viral” and called 3X an “Aroldis Chapman Style Training Program” while offering a link to purchase it.
Chapman and Bauer were two of seven players whose likenesses were ordered removed from the TopVelocity website in a February letter from the Major League Baseball Players’ Association, according to a copy of the letter Pourciau provided.
“While we appreciate TopVelocity’s interest in celebrating the success achieved by these Players,” the letter read, “we trust you can understand that the … activities violate (players’) rights.
Pourciau said he ultimately did strike all references to Bauer as part of an effort to avoid litigation. Bauer, who has been among the best pitchers in the American League this season and could make his first All-Star Game, first asked for the excision of any materials related to him Jan. 26, according to court filings. Two months later, he sent another cease-and-desist letter, and in an April 9 letter from his lawyer, Bauer threatened to sue Pourciau. By April 19, Pourciau’s lawyer said TopVelocity had scrubbed Bauer’s name from the site and 3X training materials. Bauer’s request for an affidavit to affirm their removal went unanswered.
“There are well-established laws that protect against using someone’s image without his or her consent,” said Tim Slavin, the MLBPA’s chief of business affairs and senior counsel. “Trevor is not creating those laws; he’s simply enforcing them.”
Other major league players who are not affiliated with TopVelocity continue to dot its website, even after the union’s letter. Beyond Stroman and Chapman, there are video breakdowns of Yu Darvish, Felix Hernandez, Sonny Gray and Chris Archer, plus in-uniform photographs of Chris Sale, Salvador Perez and Yadier Molina. Under the Products tab at the top of TopVelocity’s website are 18 options related to 3X, ranging from a one-on-one camp for $3,197 and a speaking fee of $1,997 to a $47 video of pitching grips with Aardsma.
“TopVelocity is running a business to make money,” Slavin said. “Their product includes an analysis of pitching styles. It’s not a surprise they would want to market and promote themselves by using the image of one of the best pitchers in the game. But keep in mind that they could still have a product without using the image of a real big league player. They could just as easily use avatars of generic players to sell their points of instruction and analysis. That wouldn’t sell as well, and they know it, which is why they are in this dispute.”
Pourciau has steeled for the Bauer fight, as well as potential ones with the union and even Major League Baseball enforcing the copyrighted logos featured on uniforms, by launching a GoFundMe page. On it, he posted a video, where he frames the case as one that cuts to the heart of a modern intellectual-property debate: Does the law properly reflect the openness of the Internet? In hopes of drumming up support for his cause, Pourciau started a hashtag: #SupportFairUse. The campaign has received $1,320 of the $100,000 he hopes to raise.
“I know I’m provocative,” Pourciau said. “I know I put myself out there. I know I’m a big voice. I understand why it’s me, and I’m accepting of that. I actually like the role. I’d be glad to help the industry come to terms with it. We need rules. We need to know what we’re allowed to do and not to do as coaches, as baseball trainers. We need to know what we’re allowed to do. It feels like the Wild West online.
“I don’t think there’s any way possible you can prove I implied that he trained with me or worked with me. Everything was just very clinical in the analysis that I did.”
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