Michael Jordan’s lawsuit against Jewel Food Stores looks to be headed to a jury after a federal court judge denied the basketball legend’s motion for summary judgment.

Jordan sued Jewel-Osco in 2009 when the grocery chain placed an ad page in a commemorative issue of Sports Illustrated recognizing Jordan’s induction into the Hall of Fame. The ad featured an image of a pair of basketball shoes with the number 23 under text reading: “A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.”

The ad also featured Jewel-Osco’s logo and slogan “Good things are just around the corner.”

Jordan alleged the ad violated Illinois’s Right of Publicity Act (IRPA), a state deceptive practices statute, and the federal Lanham Act. Relying on the First Amendment, Jewel-Osco moved to dismiss the suit on the grounds that the ad was noncommercial speech and entitled to full constitutional protection.

A federal district court agreed with Jewel-Osco, but the Seventh Circuit Court of Appeals reversed last year, finding the ad to be commercial speech and therefore subject to the laws invoked by Jordan. It emphasized that modern commercial advertising “is enormously varied in form and style.”

The basketball star then filed a motion for summary judgment on his IRPA claims (declining to pursue his Lanham Act allegations).

Jordan pointed to language from the Seventh Circuit decision that “Jewel’s ad has an unmistakable commercial function” and “an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser.”

But those comments were made in the context of the First Amendment argument, not consideration of the IRPA claims, the federal district court judge ruled on remand. While Jordan had satisfied two elements of the state statute—an appropriation of the plaintiff’s name or likeness without his consent—the question remained whether Jewel’s ad served a “commercial purpose.”

Jordan’s motion failed to include any case law or legal arguments on the issue, U.S. District Court Judge Gary Feinerman wrote, and instead simply relied on the Seventh Circuit opinion for support.

But the federal appellate panel had explicitly declined to opine beyond the issue of Jewel’s First Amendment defense, writing that “[b]ecause the merits have not been briefed, we express no opinion on the substance of Jordan’s claims under the Lanham Act or any of the state-law theories.”

Jordan’s failure to elaborate on the commercial purpose of Jewel’s ad left the plaintiff unable to “get the W,” the judge said.

“Put simply, Jordan argues that because the Seventh Circuit’s opinion said what it said, Jewel’s ad has a ‘commercial purpose’ under the IRPA,” the court said. “But that is precisely what the Seventh Circuit twice made clear it was not saying.”

Judge Feinerman did let Sports Illustrated’s publisher, Time, Inc., off the hook, as the IRPA is an intentional tort and if Jewel were found to be liable, state law would prevent contributory liability from being imposed on Time.

To read the opinion in Jordan v. Jewel Food Stores, Inc., click here.

Why it matters: The issue of what constitutes commercial speech in a First Amendment analysis may be different when considered under the Illinois statute, the court noted, and remains an unanswered question. If the parties don’t settle the case in the coming months, Jordan and the grocery chain are set to try the case before a federal jury in Illinois beginning December 8, 2015.