Tuesday, March 5, 2013

Has Johnny Football Found A Way For College Athletes To Be Paid Before Ed O’Bannon?

By Conor Flahive

Every year, corporations shell out billions to capitalize on existing tribal relationships between college sports fans and universities. However, while college athletes and the institutions they represent achieve fame, it is only the institutions that amass fortune. 

Under NCAA guidelines, college athletes are prohibited from making a commercial profit off their name, image or likeness. NCAA opines that any payment to college athletes would interfere with its overall amateur athletic and academic goals. Over the years the organization has been given great deference by the courts in preventing college athletes from personally profiting from their own efforts.

However, that may soon change.

The plaintiffs in the highly publicized In Re: NCAA Name & Likeness Licensing Litigation, led by former UCLA basketball star Ed O’Bannon, won a significant legal victory last month when a U.S. District Court Judge denied the NCAA’s motion to dismiss the plaintiffs’ attempt to bring current collegiate athletes into the lawsuit. Prior to the plaintiffs moving for class certification, the issue in the case was only whether former players, no longer in school, ought to be paid when the NCAA or one of its licensees uses the images of these players for commercial purposes. If current college athletes are certified into the plaintiffs’ class, and are victorious in the lawsuit, the NCAA would lose its total control over the massive profits it collects each year from the heroics of college athletes. 

According to the plaintiffs, any monies earned from a player’s image and likeness would be put into a trust fund, which could be tapped into when the athlete leaves college. A class certification hearing is set for May 9 of this year, with trial scheduled to begin in July 2014. However, Texas A&M quarterback and 2012 Heisman Trophy Winner Johnny Manziel, who is one current college athlete that stands to benefit from a ruling against the NCAA, has decided to not wait for the outcome of the case to go after money that he believes is rightfully his.

Manziel, who is more commonly known as Johnny Football, is coming off an historic season. On February 2, with his popularity at fever pitch, the Manziel family, joined by Texas A&M, filed a trademark application for the nickname “Johnny Football” in order to prevent third parties from profiting off of his nickname. It was widely though that, at least until a court strikes down the NCAA’s current bylaws preventing the commercial use of college athletes’ image and likeness, Manziel could only protect his property interest from being infringed upon, and would not be able to profit off of his nickname until he finishes his college career. Thus, when Manziel found out that someone was selling shirts with the words “Keep Calm and Johhny Football,” Manziel filed a lawsuit on February 15 in the Eastern District of Texas, claiming trademark infringement. 

Here comes the shocker. After learning about Manziel’s lawsuit, the NCAA notified Texas A&M that “a student-athlete can keep financial earnings as a result of a legal action.” Essentially, the NCAA is saying that Manziel cannot sell “Keep Calm and Johnny Football” shirts, but he can recoup any proceeds that arise from someone else selling those shirts. 

Johnny Manziel may be taking all of his classes online this semester, but he appears to be learning how to do something that no other student-athlete before him has been able to do—find a massive loophole in the NCAA’s bylaws.

Stay tuned as Conor continues to follow NCAA - student athlete legal relations right here on SBz. 

And feel free to send him an email wishing him luck on the California Bar Exam later this month!!!

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