College football and basketball players hoping to cash in on the Johnny Football “loophole” should hold off before they retain intellectual property attorneys. A Texas A&M official said Tuesday that while the NCAA would allow Texas A&M quarterback Johnny Manziel to collect damages if his corporation’s lawsuit against the maker of the “Keep Calm and Johnny Football” T-shirt pans out, the governing body of college sports told Texas A&M it would consider an intentional copyright violation for the purposes of funneling money to a player to be a violation.
“They specifically called that out,” Texas A&M vice president of business development Shane Hinckley said. “If it was an orchestrated event between a student-athlete and a booster, then that would fall under the enforcement arm. So that’s pretty much out.”
Hinckley said the Johnny Football phenomenon has been a learning experience on the business and legal side. He calls the situation a “three-headed monster” involving Manziel’s likeness, his intellectual property rights and the intellectual property rights of Texas A&M. Hinckley said about 20 percent of the unlicensed Johnny Football merchandise he’s seen has also infringed upon Texas A&M’s marks. Texas A&M is not allowed to market merchandise bearing Manziel’s name or nickname. It is allowed to sell his No. 2 jersey with no name attached. Still, even if Texas A&M’s marks are not used by a Johnny Football merchandise seller, Hinckley said any use of the school colors (maroon and white) could be considered a violation of the school’s intellectual property rights based on the 2009 ruling in favor of LSU against Florida-based T-shirt maker Smack Apparel.
Whether Manziel should be able to cash in now on his notoriety is another issue for another day, but it appears his case will not be the one that brings down the NCAA’s amateurism model. Despite the suggestion that the ability to recover damages would be a loophole, the NCAA is aware of that possibility. “They specifically said that if it was an orchestrated event that it would fall under the enforcement proceedings and be a separate issue,” Hinckley said. “So all this talk about loopholes, there’s not a lot of ground for that.”
