Newcombe V. Coors: How Athletes Won The Right To Their Images

Don Newcombe pitched in the Major Leagues from 1949 until 1960, and on his best days he was fearsome. “Newk,” as he was known to his teammates on the Dodgers, won 17 games in his first season and was the National League Rookie of the Year. That year he also became the first black pitcher to start a World Series game. Seven years later, he went 27-7, good enough for both the Cy Young Award and designation as the league’s Most Valuable Player.

But six years after his retirement, Don Newcombe acknowledged what lots of the people he’d played with and against already knew: he could have been a great deal better.

"Newcombe could have been better if he'd been sober while he was playing," says Sarah Fields, an associate professor in communication at the University of Colorado Denver.

"Newcombe himself thinks he could have been in the Hall of Fame. And, I mean, he was a remarkable pitcher. But when he started pitching he weighed about 225, 220, and when he finished, his weight had ballooned up to 250. He drank a lot."

Though that could be said of lots of Major League players, there’s no doubt that drinking diminished Newcombe’s effectiveness and shortened his career. From 1958 until 1960, when his Major League career ended, the former Cy Young winner bounced from team to team and lost more often than he won. Half-a-dozen years after retiring, he found recovery. Shortly thereafter, he started helping others along that road, and he helped begin Major League Baseball’s program for alcoholics. Newcombe has often said he considers that work far more significant than anything he did on the mound.

So when the Feb. 14, 1994 Sports Illustrated Swimsuit Issue featured a pitcher who resembled Newcombe in an ad for Killian's Irish Red beer, the man who’d found recovery and built his second career on counselling alcoholics was irate.

"The ad itself is an interesting ad," Fields says. "It's got this picture of an African-American baseball player in mid windup. There were some differences. He wore number 36 as a player. The number on the jersey was 39. The colors didn't quite match up to the Dodger colors, but the ad itself was an intentional play on the words of color. The text reads, 'Most of all it's been a game about color, where the grass is green and the ball is white and men in blue yell at guys named Whitey and Red who wear hometown white pinstripes and away city grays. And in the stands blue- and white-collared fans wave multicolored pennants eating Red Hots and drinking Red cold. Killian's Irish Red has the face of Irishman Casey, with the town of Mudville.'

"Then it talks about, 'It's a game of color, and I think this as I sip a cold Killian's Red, watching my team whitewash their rivals. Killian's Red, ask for it by color.'

"But the image is of a guy who's the second African-American to play for the Brooklyn Dodgers."

More importantly, the image is of a guy who had dedicated almost three decades to helping those struggling with alcohol abuse. So, what's Don Newcombe to do?

"He's obviously frustrated, and it's America, so the best outlet for frustration is a lawsuit," Fields says.

"I don't think it was about money for Newcombe at all. I think this was about protecting his image. Coors Brewing Company owned that particular beer, and so he files a lawsuit in the federal district courts, and he charges Coors with a violation of his right of publicity.

"The right of publicity is a relatively recent legal right. You know, if you go back to the 1920s, when you first see signs of athletes being serious celebrities — Babe Ruth for example — anybody who wanted to use his name or image could do so. Because he was a celebrity, it was assumed he didn't have control. You could use anybody's picture on any advertising, and that person really couldn't do anything about it."

OK, but that was almost 100 years ago. This ad appeared in 1994. Surely athletes had the right to control their images by then?

"I think, for Newcombe, this was about proving that he was who he was. This is a man who saw himself as beating alcohol and alcoholism. And by proving that Coors hadn't duped him or conned him or paid him, his reputation and his dignity remained intact."

Sarah Fields

"At the trial court level, he loses," Fields says. "So Newcombe appeals to the 9th Circuit of the United States Court of Appeals. And he argues that the Ninth Circuit should follow the lead of a judge who had dissented in a case called O'Brien v. Pabst Sales from 1938. And that was actually a really similar case. Davey O'Brien had been this famous quarterback for Texas Christian University, and Pabst Brewery used his image on a calendar. A dissenting judge in that case in 1938 had said, 'You know, I think that celebrities particularly have the right to control their image so that they can profit off that.'"

But that wasn't the only precedent Newcombe could count on.

"Another case that had come in this chain of command was Kimbrough v. Coca-Cola," Fields says. "John Kimbrough had been a running back for Texas A&M and he had been told that he was going to be in the Texas Sports Hall of Fame. And they did a portrait of him, and so his daughter was appalled when she saw that same portrait in a Coca-Cola ad at football game.

"O'Brien had been really angry about his image being used in a beer commercial because O'Brien didn't drink, whereas Kimbrough was angry about his picture being used in Coca-Cola because he wasn't being paid. The Newcombe case combines the two. Newcombe is genuinely most angry at being associated with beer. But he's got this Kimbrough case in the precedent to argue that it could also be about money. And his victory moves it forward. The courts essentially say it doesn't matter whether you agree with what you're being linked to, you have to agree to be linked to it."

But Newcombe's fight wasn't over. The appellate court had only ruled that he could take his case to trial.

"If he could prove to a jury that Coors had used his image, that they had done so without his permission, that Coors had benefited financially, and that Newcombe had been injured in any way, then he could have received pretty significant financial damages," Fields says.

So, did he benefit financially? Well, we don't know…

"There was radio silence after it was over, which makes me think that there was in fact a settlement, and that part of that settlement included a gag order prohibiting all parties from discussing it," Fields says. "I think, for Newcombe, this was about proving that he was who he was. This is a man who saw himself as beating alcohol and alcoholism. And by proving that Coors hadn't duped him or conned him or paid him, his reputation and his dignity remained intact."

We don't know what, if anything, Newcombe gained from his lawsuit. He's 90 years old now. We asked for comment, but not surprisingly, we didn't hear back. But we do know that his fight against Coors had a huge impact on the rights of other athletes to control the use of their own images.

"It was a step forward in the legal chain, so to speak, which allows an athlete to claim as much right and control over their image as athletes and celebrities claim they do today," Fields says. "His influence and his effect on today's celebrity athletes is profound, and they all owe him a debt of gratitude — and probably a thank you note."

Sarah Fields is the author of "Game Faces: Sport Celebrity and the Laws of Reputation."