“Keep Calm and Johnny Football.”

I got a couple of e-mails about the NCAA’s blessing of Johnny Manziel’s trademark infringement lawsuit, particularly this:

The lawsuit asks the court to award damages for the unlawful sale of the “Johnny Football” T-shirts. Texas A&M’s compliance office recently received a ruling from the NCAA that a student-athlete can keep financial earnings as a result of a legal action.  [Emphasis added.]

Are we looking at a hole there in the NCAA’s amateurism stance that’s big enough to drive a Mack semi through?  Well, this is the NCAA we’re talking about, so it’s probably wise not to draw any hard and fast conclusions, but John Infante suggests there may not be that much to be concerned about with the NCAA’s ruling.

The buzz is not over Manziel’s suit itself but over the possibility that the NCAA has created a huge loophole. The way the scam would work is that a booster would sell items using the likeness of an athlete without permission. The athlete would then sue. The booster would then settle the lawsuit (although the NCAA said nothing about settlement) or simply not defend the lawsuit and allow a default judgment to be entered against them. The booster then pays the athlete the judgment, which they may even have worked out before.

The one holdup is that the athlete is not the only party involved. The institution still has responsibilities when someone makes unauthorized use of a trademark. The NCAA could change the promotional activity bylaws and/or increase the penalties so that a school could no longer allow this activity to happen and simply send cease and desist letters when it does. Schools could be required to disassociate boosters, face bigger penalties, or even be at risk for major violations if the NCAA stepped up enforcement in this area. Even the act of selling the products could be interpreted as an activity that turns a vendor into a booster, thus bringing more people under the umbrella that the school needs to keep an eye on.

In other words, if a scam is really being worked in such a situation, in effect, it’s not just a two-man deal.  And the school could have more at risk than the player.  Infante also makes a valid point that the courts would look unapprovingly on being used to further such an arrangement.

None of which is to say that somebody as smart as, say, Cecil Newton, might not try to give this a go.  You never know if the powers that be are willing to turn a blind eye to something until you test it.

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48 Comments

Filed under It's Just Bidness, The NCAA

48 responses to ““Keep Calm and Johnny Football.”

  1. The other Doug

    I don’t see how the school could police this type of scam.

    • I’m not sure how many boosters/players are smart enough to pull something like this off without an attorney’s help. And an attorney willing to perpetrate a fraud on the court may not be the kind of lawyer you’d want to hitch your wagon to, especially if said wagon went into the ditch.

      • 81Dog

        Maybe they should just get preachers involved. That seems to work out well at other schools.

      • Hogbody Spradlin

        Sounds like collusion, which in itself is tort and probably criminal when public resources get involved.

      • The other Doug

        So, if you worked in the UGA Athletic Department you would feel confident that this would never happen because there is no way a lawyer would help with this scam?

        • I’m saying the collective intelligences of the parties involved makes me think I’d have a decent chance of figuring out the scam.

          • Do you have to figure it out though Senator? Simple scenario, booster creates money making t-shirt, etc with a trademarked nickname. Kid sees, and sues. Settle quickly out of court right after filing, and the court’s resources are barely expended if at all, the kid gets paid, the booster might get to keep a little change in the deal too, and everyone walks away happy.

            • Guess it depends on how many boosters are in the t-shirt business.

              • Or how quickly they can get into the tshirt business.

                • Really, the kid just needs something they can trademark. Do that, the booster can then violate or profit off the trademark somehow to create the legal claim. Sue, settle, move on. Certainly seems tricky, and not very easily abused, but certainly capable with the right circumstances and people willing to make the deal.

                  • Don’t you think that any booster trying this is going to be looked at very carefully to see if there was any contact?

                    • AthensHomerDawg

                      When judging the engagement of a competent attorney one must make sure that any attorney willing to perpetrate a fraud on the court will not be the kind of lawyer that will allow your wagon to run off into a ditch in the first place. “Going to trial with a lawyer who considers your whole life-style a Crime in Progress is not a happy prospect.”

                    • Who’s looking? The courts won’t care about NCAA violations. And as we’ve seen, the NCAA is a clusterf*** of it’s own, and who knows what gets looked at and what won’t. Some will take that risk. The problem is the set up. It’s hard to do to induce an athlete to come to your school, because of the rare chance of those circumstances being in place during recruitment. But considering the unlicensed tshirt vendors up and down Baxter every game day, the possibility is there if the right mind/s start working on it.

                    • The courts may not care about the NCAA, but they take being used to perpetrate a fraud very seriously.

                    • Agreed, but if it never enters the court (see file, quick settlement) how much do they care? Also, you’d probably want to use a friendly court with a, let’s call it an “understanding” judge.

                    • You’re making this a pretty complicated conspiracy.

                    • Also, you may not even have to file, and thus never involve a court. Someone starts the shady t-shirt (or whatever) sales. Attorney threatens suit, settle before filing a suit, and the courts are never used.

                    • School is likely to step in before S-A does in that scenario, with C & D letter. Settlement would involve school.

  2. Tim

    If there is a scam around Johnny Football its his not attending class at A&M. He is doing online classes. How long before we hear of players doing strictly online classes, then learn that someone else is logging in for them and doing the work? If you have a player with academic issues this is the perfect solution. I can see enormous potential for abuse, much more than a kid sealing a deal with a booster about a law suit.

  3. RP

    Saban and Freeze already have “consultants” looking into this.

  4. 81Dog

    so, does this mean that if O’Bannon prevails against EA Sports, current players will get a piece of the pie? It IS a class action, after all.

  5. Macallanlover

    So if JM’s family licensed the “Johnny Football” mark, and that venture made money for the licensee and the family, how does the NCAA stop the family from increasing his “allowance” with their new found money? So a new Beemer, or Lexus shows up on campus, or he moves to new luxury condo neart campus; nothing wrong with that if supplied by his well-to-do family. Manziel isn’t going to sue his family, and the family has every right to exploit his fame on a commercial basis. I don’t see how they the NCAA can intervene, and it would be simple to arrange. Any number of entrepeneurs standing by with clothing connections.

    • Darrron Rovelll

      In the future, I think it will be a race between the school and the athlete’s family/advisors to go license the name etc. I don’t think the “Johnny Football” team will have any claim or will be able to profit from merchandise that has “Johnny Football” & the marks of Texas A&M.

      If school thinks it has a situation where it can leverage the link between the athlete & the school, they will do it. I can even see it becoming a “joint partnership” to protect the student-athlete.

      School obtains the license for the TM while the athlete is eligible. % of the profits is held back for the athlete while he/she is a student so the school can maximize profits for themselves during the athlete’s playing days. When the eligibility is gone, the TM is transferred to the athlete to use themselves.

      These occurrences are going to be few and far between anyway.

    • Merk

      Some player could let their Unibrow grow out and make money off of it, like that tard Kentucy kid did.

      http://abcnews.go.com/US/anthony-davis-trademarks-unibrow-phrases-ahead-nba-draft/story?id=16655206

      Yes guy. Everyone who has a unibrow, only has one because you are a good basketball player. Never mind the whole genetics part behind it…
      “I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it,” Davis told CNBC. “Me and my family decided to trademark it because it’s very unique.”

      • Dog in Fla

        “Me and my family decided to trademark it because it’s very unique.”

        Me and my Hugh Freeze grammar police* decided browstaches are redundant enough to not warrant a very very unique trademark

        * — One emailer took issue with Freeze’s grammar. “I have two things to report. The first issue is that he did not end the last sentence in his tweet with a period. The second is that if he is referring to “these young men,” then he should have used the plural “families” instead the singular “family.” These are both violations of grammar. As an institution of higher learning, Ole Miss should hold its highest paid public figures to a standard of using the language properly.”

        http://blutarsky.wordpress.com/2013/02/23/stay-classy-dawgnation-2/

    • Dog in Fla

      “Manziel isn’t going to sue his family,”

      That’s quaint. I can picture whatever his name is and his football family sitting around the crackling West Texas no country for old men mesquite campfire every night charcoaling steers and Mexicans like it was the last picture show and singing

  6. Cojones

    Now the NCAA, by approving this to happen, are allowing courts to get into their business like Pandora’s orifices. As an alum I want to know how a player can franchise a uniform belonging to UGA and a title conveyed while playing in a UGA uniform such that his pockets are lined.

    I’m going to file for rights to “SEC Champs” signs and anyone using that combination will pay me when holding one up during a game. I will list all titles that could be dreamed of (I.E., Aaron Murray has a good year and tears up Ds while getting his PhD; to be known as “Dr. Destruction”) in the coming year and keep a steady stream going towards the courts as others think them up.

    Bet no one has filed for “Gurshall” yet. Oops!

    • Cojones

      By the way, the title of “Johnny Football” was in a movie (“Johnny Be Good”)?) about college recruiting, wasn’t it ? Why doesn’t the movie or the writer(s) retain the right to the name ?

  7. AthensHomerDawg

    Maybe Johnny was the first to trademark “Johnny Football.”
    ” You can do a free trademark search on the USPTO website -uspto.gov. There is an art to this, and I would prefer you had an attorney do it for you. If you need to do it yourself, the trademark key is on the left and then you have the option to click search. “

  8. fuelk2

    Maybe a clever defense lawyer will tell young Johnny that he doesn’t have standing to sue on an infringement of his property rights in his own name since the NCAA has told young men like AJ Green that they don’t have property rights in their own names. Or, maybe the difference is that they can have rights, but they can’t play football if they do. Unless it involves a lawsuit. What a mess.

  9. Will Trane

    Sorry, Senator, but I can not keep taking this lousy baseball program at UGA. Lost 2 out of 3 to Belmont. Once again Perno can not get a team going. Had a good schedule before the SEC games, but he is wasting it. Trust me there are some outstanding high school baseball player in this State and the southeast.
    Young players go to UGA and they wither on the vine. Perno is not a good coach. His record the past two years shows that. Every team in the East has moved up while his has not. One thing he needs to do his get his young players a kick in the ass and tell them to play like a SEC caliber team.
    The team and staff is pitiful.
    Let’s see how long McGarity puts up with this mediocrity and a team not motivated to play.

  10. Bulldog Joe

    Whew. Thank god he wasn’t trying to sell a used jersey!

  11. Bulldog Joe

    “A student-athlete can keep financial earnings as a result of a legal action.”

    Thirteen SEC schools just posted a new position on their legal staff.

    • Merk

      I hear SoD was a lawyer and he is currently unemployed. Though I guess you can’t really call being paid millions not to return to work unemployed.

      • AthensHomerDawg

        “There is no such thing as an unemployed lawyer. There are only lawyers without clients.”

      • AusDawg85

        He’s working for Jerry Jones and the Cowboys. He’ll be unemployed next season.

        • Dog in Fla

          That is really going to irritate Barbara unless he has a multi-year contract.

          • Macallanlover

            Anyone who will wear a tacky, orange dress to a game at Sanford can damn well be expected put on short-shorts with a blue star on the butt and white go-go boots at Texas Stadium. Would certainly be the lowest selling Cowboy Cheerleader calendar ever but Babs won’t care, this is her world and everyone else is just passing through.