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.