Twitter was abuzz after Darren Rovell reported last night that the NCAA will allow Johnny Manziel to keep the proceeds of a trademark lawsuit he has filed against a vendor who used the “Johnny Football” trademark without authorization. This is not entirely inconsistent with NCAA amateurism principle. Manziel is not making the choice to use his name, likeness, trademark, or nickname for profit. Someone else did without authorization and Manziel as the trademark holder must protect the mark by fighting infringement. Plus the NCAA would be in a tough fight if it tried to deny to a student-athlete the proceeds of a lawsuit that the NCAA was not a party to.
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.
Whether the NCAA would take such drastic measures is unknown. If the NCAA ever had proof that an athlete or school colluded with someone selling merchandise to generate the lawsuit, they would likely come down very hard on both. The courts, which do not like to be pawns when there is no real controversy, would likely be on the NCAA’s side as well. Until the NCAA indicates that they will not use the promotional activity bylaws to close this loophole, it is a risky move for schools or boosters to try and squeeze through it.