Manziel and NCAA loophole

[Kak7304]

BY CLAY TRAVIS, OutkicktheCoverage

Johnny Manziel can do everything. Including, it would seem, find a way to legally get paid under NCAA rules while he's still playing college football. Last week Manziel's corporation, JMan2 Enterprises -- can you imagine the Christmas parties? -- filed a lawsuit against a man who was selling "Johnny Football" t-shirts. While Manziel can't profit off the direct sale of t-shirts featuring his name or likeness, the NCAA has ruled that he can trademark the phrase and protect his property interest from being infringed upon.

Only, that's not all he can do. The NCAA recently notified Texas A&M that, "a student-athlete can keep financial earnings as a result of a legal action."

You see the loophole you can drive a Rolls-Royce through yet?

Manziel can't directly profit off the sale of licensed products featuring his likeness, but he can pocket any proceeds that arise from a trademark lawsuit. Which is basically the same thing.

Raising this interesting question, what's to keep a bunch of Texas A&M boosters from intentionally infringing on Manziel's trademark, being sued for doing so, and then settling out of court for hundreds of thousands of dollars in legal payments to Manziel?

Nothing.

In other words, isn't this ruling a license for boosters to legally pay Manziel to play college football?

Yep.

What's more, it's not just Manziel who has this opportunity. Every star player should work to trademark his likeness so that he can protect his future earnings potential. Trying to decide whether to go pro or stay in college, but really need to make some money off your talents while you're in college? Just find a booster who is willing to infringe upon your trademark, sue him, have him agree to settle, and voila, the payment becomes permissible under NCAA rules.

This is genius.

It doesn't even have to be coordinated to make the payment legal, a booster can just decide to infringe, wait to get sued, and then make a substantial settlement offer to cover the infringing.

The player can claim he's just trying to protect his trademarks and the booster can claim he was trying to make some money and the settlement offer is just a way to rectify his wrongdoing.

Someone who didn't trust the motives of the NCAA -- put me in this camp -- might even point out that this ruling is awfully convenient given the massive lawsuit currently pending against the NCAA and EA Sports. You know, the lawsuit that argues that every player deserves payment because the NCAA took the players' likenesses by putting them into the exclusively licensed Electronic Arts video games. Should the NCAA lose this case and be forced to pay out damages, those payments would be otherwise classified as improper benefits, the players would be being paid for their likeness, a violation of NCAA rules. Meaning -- the irony is delicious -- that the NCAA would be in the position of making every player ineligible under NCAA rules.

Yep, at its essence, the player lawusit against the NCAA accuses the NCAA of infringing upon its own rules of amateurism. I laid out the NCAA's legal mess nearly four years ago when the lawsuit was first filed. Read this FanHouse column if you want to see why this is such a big deal.

Here's the crux of the matter in four sentences: The NCAA prohibits players from being paid anything for their participation in collegiate athletics. Yet if a court, jury, or settlement determines the NCAA appropriated player likenesses on these video games then they must pay something of value to the players whose images they appropriated. Only then they'll be paying players for their participation in collegiate athletics. Yep, the NCAA will be violating the NCAA's rules on amateurism.

If the NCAA ends up settling this case -- which it would likely do if the case is certified as a class action -- then those payments would violate NCAA rules, rendering every current player ineligible under NCAA rules. Yep, the NCAA would become the greatest infringer of NCAA rules in the history of amateur athletics. What a fitting ending to the organization.

So what does the NCAA do to avoid this rule violation? It does what all dishonest dictatorships do, it creates an exception to the rules -- payments resulting from lawsuits seeking to protect trademarks or likenesses do not violate NCAA rules on improper benefits.

How convenient is that?

It looks to me like the NCAA is very worried about losing the Electronic Arts lawsuit and is trying to protect against the NCAA itself from becoming the greatest violator of the improper benefits regulation in NCAA history. And Johnny Manziel has just created a hole big enough to drive a Rolls-Royce through. Seriously, what can't this guy do?

My advice to current players? Every single one of you should attempt to trademark your likeness. Then hope that someone violates that likeness.

If they do?

Cha-ching, baby, you can get paid for playing under NCAA rules.

This might be Johnny Football's most remarkable achievement yet.

This isn't a loophole, gents, Johnny Manziel just killed the NCAA.

Very interesting points made in this article and I'm interested to see where this goes.

 

[Whiskeyjack]

Linking to Clay Travis articles is a cardinal sin.

 

[BeauBenken]

Interesting.

 

[WakeUpEchoes]

This is confusing to me. I don't understand how he could have standing to sue. There is no harm to him, b/c he can't profit off of his own name anyway.

 

[GoldenIsThyFame]

Never link Clay Travis again. Ever.

 

[irishog77]

Linking to Clay Travis articles is a cardinal sin.

Never link Clay Travis again. Ever.

How'd y'all know it was a Clay Travis article??? Hmm?? Hmm??

Agreed though. I've reached the point where I think I can honestly say I hate that motherf*@^er. I can't even listen to talk radio in Nashville anymore because of that jack@ss.

 

[clashmore_mike]

It was a link to out kick the coverage, which is the site Travis runs.

 

[irishog77]

Oh. All I see is a quoted article, no link.

 

[GoldenIsThyFame]

Oh. All I see is a quoted article, no link.

Yeah, cuz I removed it.

 

[irishroo]

Who the hell cares who wrote the article, it's hugely important for college football. Players can now profit from products featuring their likeness. I realize that at this point a player needs a trademark and someone to infringe upon that trademark to take advantage, but does anyone really think any appellate court around is going to uphold that ruling? Courts will see this for what it is - profit from licensing one's image - and will remove the loophole such that players will be able to directly profit from their likeness rather than this roundabout way of doing so. You know what that means? Part of the profit from all those #5 jerseys and hats you saw in the stadium would go to Manti, profits from those HeisManti shirts go to Manti, and the list goes on. This is bringing college football perilously close to the NFL in that regard.

 

[kmoose]

Who the hell cares who wrote the article, it's hugely important for college football. Players can now profit from products featuring their likeness. I realize that at this point a player needs a trademark and someone to infringe upon that trademark to take advantage, but does anyone really think any appellate court around is going to uphold that ruling? Courts will see this for what it is - profit from licensing one's image - and will remove the loophole such that players will be able to directly profit from their likeness rather than this roundabout way of doing so. You know what that means? Part of the profit from all those #5 jerseys and hats you saw in the stadium would go to Manti, profits from those HeisManti shirts go to Manti, and the list goes on. This is bringing college football perilously close to the NFL in that regard.

Players are already able to directly profit from their likeness. There is no law that says a college athlete cannot be paid to endorse a product, or allow his or her likeness to be used.

They WILL, however, lose their amateur status, and be ineligible to compete in NCAA Athletics, at that point. The courts are unlikely to strike down the amateurism rules that the NCAA has in place, so who cares about the appellate courts?

 

[BGIF]

Yeah, cuz I removed it.

It's OK to remove the LINK but provide a cite, article title, author, entity, date otherwise you are opening IE up to a copywrite suit. This actually happened here and at DomerDomain 5 years ago.

If an article is copied whether quoted or not provide attribution. It is my understanding that a link is not required if you cite sufficient information for the reader to find the article.

 

[GoldenIsThyFame]

It's OK to remove the LINK but provide a cite, article title, author, entity, date otherwise you are opening IE up to a copywrite suit. This actually happened here and at DomerDomain 5 years ago.

If an article is copied whether quoted or not provide attribution. It is my understanding that a link is not required if you cite sufficient information for the reader to find the article.

I feel like there was enough reference to Clay Travis that everyone knew it was by him.

 

[irishroo]

Players are already able to directly profit from their likeness. There is no law that says a college athlete cannot be paid to endorse a product, or allow his or her likeness to be used.

They WILL, however, lose their amateur status, and be ineligible to compete in NCAA Athletics, at that point. The courts are unlikely to strike down the amateurism rules that the NCAA has in place, so who cares about the appellate courts?

Yes but now the NCAA is saying that a player can profit from his likeness (in this roundabout way) and maintain amateur status/NCAA eligibility. I can't imagine at least one player doesn't challenge the NCAA on this, basically arguing that if a player can make money off his likeness through this trademark route and retain eligibility, then a player should be able to profit from his likeness and retain eligibility without having to go through the whole trademark process.

 

[Grahambo]

I honestly don't have a problem with this.

 

[BGIF]

I feel like there was enough reference to Clay Travis that everyone knew it was by him.

What you feel isn't the issue. What the law is and what the history is here is what counts.

The original owners of Irish Envy and DomerDomain didn't "feel" attribution was a problem. The sites that didn't receive attribution took issue and threatened legal action. Both original owners of IE and DD put their sites up for sale and sold them. The solution was to provide attribution as noted above as it met the legal requirements.

Once upon a time it documented in the archives here.



BTW, everyone didn't know it was Clay Travis. I didn't.

 

[Irish Houstonian]

This author's too clever by half. The NCAA said you can keep $ as a result of "legal action". Not just trademark action, any action.

So if this really were a true "loophole" then you could tell a booster to punch you in the face, sue them, and then settle for a kagillion dollars.

 

[Kak7304]

Who is Clay Travis and why is he so hated? This is the first I've heard of him.

 

[BGIF]

The trademark is for the courts to decide.

As for boosters sending funds via a bogus lawsuit, it's similar to bogus booster jobs, free cars to players relatives for the relative to lend to the player, or an agent giving a house to a Heisman candidate's mother to live in, all Extra Benefits.

This bogus lawsuit situation would be easier for the NCAA to uncover as some reporter is going to be quick to report it as it is public information. The lack of subpoena would not be an impediment.

 

[ClausentoTate]

He's not the original Johnny Football. I don't get it.

 

[UmphreakDomer]

this reminds me of the plot in "dogma"--like if the ncaa loses its own case, existence will cease to remain.

 

[ND NYC]

this is interesting...

 

[30MilesSE]

There is a matter of intent here.
Courts aren't stupid, but Clay Travis is.

 

[30MilesSE]

Furthermore, courts would never enforce these "settlements", it undermines their legitimacy as well as the Federal Rules of Civil Procedure.

 

[Rhode Irish]

This is not a thing. Clay Travis should consult with an attorney before he writes about his next brilliant legal scam that won't work. This is the legal equivalent of me thinking I could get rich by photocopying dollar bills when I was four years old.

 

[irishog77]

This is not a thing. Clay Travis should consult with an attorney before he writes about his next brilliant legal scam that won't work. This is the legal equivalent of me thinking I could get rich by photocopying dollar bills when I was four years old.

Clay Travis is an attorney.

 

[30MilesSE]

Clay Travis is an attorney.

Which is why this is so amusing. It's legally nonsensical.

 

[phgreek]

...seems nonsensical, and it would likely be a short-lived scheme.

But then again the NCAA logic once again escapes me.

To me the NCAA could have done better here, say by stipulating...only non-profits may benefit from the sale of trademarked items associated with a current NCAA player. NP sues, the charity gains...not the player or his/her family. As well a NP seems more in line with the NCAA and universities themselves.

Can you cheat in a NP, and abuse it...I guess so, but the IRS sanctions ain't NCAA sanctions, and to do a NP correctly takes time, money, and effort to keep your tail out of trouble...that in and of itself weeds out alot of BS people, and helps keep crazy relatives with profit motives from doing stupid sh!t. JMHO...

 

[Buster Bluth]

 

[IndyIrishFan1]

According to what I've read the NCAA has said "a student-athlete can keep financial earnings as a result of a legal action." So, using the same loophole, what would keep a "stranger" from accidentally rear-ending a high-profile athlete when they are sitting at a stoplight, and that athlete suing that "stranger" for emotional damages?

When I first thought of this scenario based off of the trademark lawsuit above, I thought it was too far fetched. But, is it really that far in left field to think a player (and family) who is strapped for cash might actually do this with a "stranger?"

There are more knowledgeable minds here that can probably weigh in on this. In the example I used above about the car accident, what would keep the athlete from suing the "stranger" for emotional damages and then settling out of court? Is that possible?

I'm very interested to hear some point of views, and if this loophole that Manziel might have found is actually a loophole at all.