NCAA-dead man walking?2/25/2013 8:59:59 PM
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?
In other words, isn't this ruling a license for boosters to legally pay Manziel to play college football?
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.