Tom House, a sports psychologist and retired big league pitcher and coach, is renowned for working with Tom Brady, Drew Brees, Nolan Ryan and other elite pro athletes on improving throwing power and efficiency. He’s also in the middle of a federal lawsuit involving a sports training and instruction business and its use of his patented (but not actually patented) methods. The case is set for trial in Louisville on Nov. 15.
House was a journeyman Major Leaguer who jokes his career highlight was catching Hank Aaron’s 715th home run in the Dodger bullpen. Over the decades as a coach, House has become something of a cult hero and throwing guru.
As pitching coach for the Texas Rangers, House was praised for helping six pitchers extend their careers into their 40s, among them Nolan Ryan, Kenny Rogers and Jamie Moyer, who pitched in the big leagues until he was 49. His unorthodox training methods included having baseball pitchers work on their mechanics by throwing footballs, “underloading” (using lighter balls to increase arm speed), and affixing a headband to Drew Brees to measure the QB’s brainwaves. In the Jon Hamm Disney movie, Million Dollar Arm, House is played by Bill Paxton. All of that, not to mention having Tom Brady as a devoted client, has helped him build his brand.
While the 74-year-old former Braves, Red Sox and Mariners pitcher continues to work, he’s also spending time on a legal matter. In 2016, House sued Players Dugout Inc., claiming it failed to pay royalties and infringed on his trademarks. Players Dugout, meanwhile, insists House breached contractual duties and engaged in deceptive business practices and defamatory conduct.
The origin of the case stems from House’s company—the National Pitching Association (NPA)—using NPA in commerce back in 2004 and then registering a trademark for NPA in 2007 for “clothing, namely, baseball jerseys, pants, and hats.” House hasn’t registered his own name for goods and services. However, he could still enjoy trademark rights in his name if jurors find that it has acquired a secondary meaning for commercial purposes.
House/NPA and Players’ Dugout entered into a license agreement in 2014, granting Players’ Dugout what is described as an “exclusive, worldwide license to train baseball and softball pitchers” while using NPA’s “Personally Adaptive Joint Threshold Training” method (PAJTT). Players’ Dugout could also incorporate House’s “know-how” to commercialize PAJTT as its own “Velocity Plus Arm Care Program.” Further, it could use House’s name on its website and other promotional products.
The agreement explicitly stated that PAJTT was “patented.” House, according to court records, also assured Players’ Dugout he had “applied for a patent, copyright, and trademark” to protect his IP. Per the agreement, House and NPA were required to “defend and protect all infringements upon its patent of the PAJTT Program licensed hereunder at its sole cost.” He was also on the hook to make reasonable efforts to restrain third parties that appeared to be infringing on his “patent rights.”
Several problems soon surfaced.
For one, PAJTT was not “patented” in the legal sense of the word.
In addition, other baseball academies and camps appeared to engage in unauthorized use of PAJTT. Players’ Dugout complains that other than sending a few letters, House and NPA didn’t undertake meaningful steps to stop alleged pirating.
Players’ Dugout stopped paying royalties and commissions in 2015, while continuing to gain from the NPA trademark and House’s name. As a rebuttal, Players’ Dugout insists that it paid royalties into an escrow account, pending the parties reaching a resolution on the impact of PAJTT not being patented.
House and his company argue that Players’ Dugout deviated from the PAJTT program in ways that were “not safe and effective.” To corroborate that allegation, House cites letters and emails from coaches and parents claiming young athletes have been injured through these deviated methods. One parent in Maryland complained that his son suffered “tremendous pain in his arm” and that there were “upwards of 10 arm surgeries” from a small community. Players’ Dugout disputes any insinuation its techniques and adaptations raise a safety issue.
On Oct. 20, U.S. District Court Judge Rebecca Grady Jennings ruled on several motions by both sides concerning certain types of evidence the other intends to use.
Players’ Dugout, for example, sought to exclude House, who holds multiple degrees from the University of Southern California and a Ph.D. from U.S. International University (now Alliant International University), from mentioning or introducing evidence about his work with Brady and other pro athletes. Players’ Dugout insists such evidence is irrelevant to the legal claims in the case and is likely to both confuse the jury and prejudice them in House’s favor.
House disagreed, contending his work with famous athletes is relevant to Players’ Dugout’s use of his name. He notes that even after Players’ Dugout says House and NPA allegedly defamed the company, Players’ Dugout still used his name as the source of its Velocity Plus program. Judge Jennings agreed with House and denied the Players’ Dugout motion.
The judge, however, denied a motion by House to exclude certain testimony related to the alleged copying of Velocity Plus by Players’ Dugout. House wanted Players’ Dugout staff barred from introducing testimony that unauthorized third parties were engaged in “copying or pirating.” Any such testimony, House argued, would be inadmissible hearsay, since staff’s only knowledge would have come from what others told them or what they saw online. Players’ Dugout disagreed, maintaining that such testimony wouldn’t be for the truth of the matter asserted (a key element of hearsay) but instead to show that House was on notice of potential pirating and allegedly failed to act. Judge Jennings sided with Players’ Dugout and is allowing the staff testimony.
Judge Jennings also sided with Players’ Dugout regarding efforts by House’s attorneys to introduce a printout of Tom House’s Wikipedia page as evidence. She reasoned that Wikipedia “is a source whose accuracy can be reasonably questioned,” especially since “anyone with Internet access can write and make changes to Wikipedia articles.” But she sided with House on several other matters, including on use of emails from third parties and on several witnesses from faraway places, including Hawaii and Alaska, being able to testify by video call.
The trial is expected to last five days. As in any case, the parties could avert a trial by reaching an out-of-court settlement.
With assistance from Luke Cyphers.