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.

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