Johnny Football and the NCAA Loophole

How copyright infringement is straining the idea of the amateur athlete

Johnny Football and the NCAA Loophole
Quarterback Johnny Manziel #2 of the Texas A and M Aggies celebrates after defeating the Oklahoma Sooners
Photograph by Jackson Laizure/Getty Images

The tale of Johnny Manziel’s bootleg T-shirts is about how an amateur athlete has to get robbed before he can get paid. It begins with a black market and ends with a conspiracy theory. Johnny Manziel is a sophomore at Texas A&M University. He plays quarterback for the football team. He runs like a rabbit and has an arm like a cannon. Last year he won the Heisman Trophy for being the best player in the sport. In College Station, Tex., they love him. They call him “Johnny Football.”

Last fall, a Texas man named Eric Vaughan started selling T-shirts with the slogan “Keep Calm and Johnny Football.” They were popular, especially since Manziel merchandise isn’t widely available. As an amateur, or “student athlete,” in the NCAA’s parlance, Manziel is not allowed to profit from his image or likeness, so cannot sell T-shirts. The university is also limited at how it can merchandise off of his popularity. It can sell jerseys with his number, but not his name, and it can use the nickname “Johnny Football” only in promotional and editorial material, such as game programs. T-shirts are out of bounds for the school as well. Vaughan was filling this void.

But his catchphrase comes with a catch. Manziel and the school had set about trademarking “Johnny Football” in November, and on Feb. 15, JMAN2 Enterpises, the company Manziel set up to manage his assets, filed suit against Vaughan for trademark infringement. This raised a delicate question: If Manziel won the suit and was awarded damages, could he keep the money without forfeiting his amateur status? The NCAA, according to ESPN, told Texas A&M that he could.

The news ignited speculation about the loophole that might bring down the NCAA. If Manziel can collect damages, journalists asked, what’s to stop a friend or Texas A&M booster from purposely infringing in order to pay him? Soon, every big-time college athlete could have a shell company, selling T-shirts and hats, that they set up in order to sue. Not so fast, the NCAA said yesterday. According to Sports Illustrated, the NCAA told Shane Hinckley, Texas A&M’s vice president of business development, that if a student-athlete and booster conspired to sell merchandise, that would be a violation of NCAA policy. “So that’s pretty much out,” Hinckley said.

Perhaps. In any case, the NCAA is keeping athlete pay underground where it has always been. Except now, if a player is lucky, some enterprising bootlegger will steal his image and make a killing. And then that player can finally get paid on the up and up.

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