Dear College Athletes:
You are obviously well aware of NCAA rules that prohibit you from advertising, recommending, promoting or endorsing the sale of commercial products and services.
Five years ago when Tim Tebow won the Heisman Trophy, I wrote him a letter on Sports Law Blog suggesting that he might consider suing third parties who profit from the use of his identity in commercial products without his permission. By filing a lawsuit an athlete is not accepting payment for advertising, recommending, promoting or endorsing the sale of a product; rather the athlete would be protecting the property right in his identity from theft, which he has every legal right to do.
You may have heard that Heisman Trophy winner Johnny Manziel just recently filed a trademark lawsuit against someone for selling "Johnny Football" T-shirts without his permission. As this is the first athlete with college eligibility to file a lawsuit asserting a trademark or right of publicity violation, the NCAA had no choice but to rule that Manziel can keep any money received from the litigation without it affecting his eligibility.
But the NCAA also clarified that any "loophole" created by Manziel's lawsuit is "closed" because they would consider it an NCAA violation if a lawsuit was an "orchestrated event" between the athlete and a booster to intentionally violate amateurism rules.
Putting aside the NCAA's conspiracy theory paranoia, here is the more likely scenario:
(1) Third party uses your identity in a product;
(2) Third party receives a cease and desist letter from your university which states that third party is violating NCAA amateurism rules and has no right to use your identity; and
(3) Third party throws the letter in the trash because (a) it is not bound by NCAA rules, (b) it is not using the university's intellectual property, (c) the university has no legal claim against it, and (d) it might even be willing to pay you a licensing fee absent your university's interference with its ability to obtain a license from you.
You see, Manziel's lawsuit exposes a dilemma that has always confronted the NCAA but which is no longer one of its best kept secrets.
The dilemma is that although the NCAA can prevent you from licensing (i.e. authorizing) the use of your identity to third parties for commercial purposes, it cannot and never could legally prevent you from receiving damages in a court of law through the enforcement of your legal rights against third parties who use your identity without your permission. And you don't need to have a trademark because there are right of publicity laws in most states that protect you.
Manziel's lawsuit also exposes the fact that neither the NCAA nor your university has the legal right or authority to prevent, or interfere with, a non-member third party's use of your identity because that property right is yours and it is your property right that is being stolen. Keep in mind that as your identity increasingly becomes more valuable for use in commercial products, third parties likewise become more willing to bear the cost of the licensing fee awarded to you in your lawsuit against them.
Manziel's lawsuit puts a spotlight on an NCAA rule that, unfortunately, not only interferes with a non-member's ability to enter a legal transaction with you but also burdens you with unnecessary and circuitous litigation that requires you to share one-third of the award with your lawyer.
Sports Law Professor