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Johnny Manziel (AKA “Johnny Football”), the reigning Heisman Trophy winner, has been living it up in the off-season. Social media has documented Manziel at the Super Bowl, Mardi Gras, courtside at NBA games, partying on Spring Break, flashing fistfuls of cash at a casino in Oklahoma, and hanging out with celebrities like Justin Timberlake, LeBron James, Chris Paul, James Harden, and Rob Gronkowski. (In addition to being the first freshman to win the Heisman Trophy, Manziel was the winner of the Davey O’Brien National Quarterback Award, Manning Award, SEC Offensive Player of the Year, Sporting News College Football Player of the Year, SEC Freshman of the Year, and a Consensus First-Team All American). Now, Manziel may have a new accomplishment to add to his laundry list of awards: he could become the first active student athlete to be paid–legally.
Generally, student athletes are forbidden from making any money while they remain in school. Student athletes that are found to have received any money during their time at school are considered ineligible and their school often receives harsh penalties from the NCAA. Manziel, however, may have found a legal loop-hole that puts money in his pocket and keeps him on the field.
Early in the season Johnny Manziel became known as “Johnny Football,” and the Manziel family attorney wisely suggested that they trademark the moniker. The family set up a corporation, called JMAN2 Enterprises, and filed for the trademark with the U.S. Patent and Trademark Office. The attorney soon found all kinds of people cashing in on “Johnny Football,” and he began suing. Early in February 2013, JMAN2 filed suit against Eric Vaughn, a man who was selling $20 t-shirts that read “Keep Calm and Johnny Football.” Even though JMAN2 did not file its trademark with the USPTO until February 2, the trademark may be protectable under both state common law and Section 43(a) of the Lanham Act until the formal registration process is complete.
This is where it gets interesting. Texas-A&M’s compliance department received a ruling from the NCAA that “a student-athlete can keep financial earnings as a result of legal action.” And not when Manziel finishes or decides to leave school–NOW! This led some to speculate that boosters of a school might intentionally “infringe” on an athlete’s trademark as an indirect way of paying them. However, courts would likely see through this fraud and players would not likely be able to profit from this type of sham lawsuit.
The real potential profit for players like Manziel would be to sue Texas A&M, the NCAA, the SEC, the Cotton Bowl, and anyone else who has been profiting from the name “Johnny Football” for the last year without paying Manziel a dime. A study by Joyce Julius & Associates found that, last season alone, Manziel was worth $37 million in “media exposure” for Texas A&M. The school bookstore sold out of all 2,500 jerseys it had by December. The Collegiate Licensing Company has estimated that winning the Heisman increases your sales and royalties 27.5% over five years. (Could you imagine if he wins another?)
So, while Manziel may be able to rake in a fair amount of money from the Eric Vaughn’s of the world (a guy on eBay who claims to have sold 625 “Johnny Football” shirts for $20 apiece), this may only be the tip of the iceberg.
(For further reading on paying student athletes and student athlete’s likeness rights, see the author’s Student Note, Intercepting Licensing Rights: Why College Athletes Need a Federal Right of Publicity.)
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