Intellectual Property Rights: A ‘Loophole’ for College Athletes to Get Paid?


Earlier this year I wrote about the possibility of NCAA athletes profiting from their athletic success. Although there hasn’t been much development in the last month in regards to that issue, a ‘loophole’ makes it possible for some college athletes to earn some well-deserved income from their collegiate athletic careers. Take Johnny Manziel, for instance: college football fans across the country know this record-breaking, Heisman Trophy recipient as ‘Johnny Football.’[1. Johnny Manziel is first freshman to win Heisman,, (last visit March 10, 2013).] What they might not know is that the nickname, ‘Johnny Football’ is a piece of intellectual property that Maziel has filed a trademark application to obtain the sole rights and use thereof.

Manziel, the current starting quarterback for Texas A&M University, has followed in line with the modern trend of athletes receiving trademark rights for their slogan, nickname, gesture, etc. and profiting from that trademark. Some athletes and their respective trademarks include: Darrelle Revis (Revis Island), Usian Bolt (lightening bolt pose),[2. Athletes trademarking the phrase that pays,,, (last visit March 7, 2013).] Tim Tebow (“Tebowing”- the phrase and the act itself) and Colin Kaepernik (“Kaepernicking” – the phrase and the act itself).[3. Thanks Tebow: Colin Kaepernick to trademark ‘Kaepernicking,”,–nfl.html, (last visit March 7, 2013).] These athletes usually create a limited liability company that files and registers the trademark.  Once the trademark is registered, they license out the use of the mark to merchandise production companies who pay to use the mark on their products.[4. Supra note ii.] Companies then use the trademark on merchandise such as t-shirts, hats, coffee mugs, and anything else collegiate sports fans may want to purchase.  When the athlete’s mark is “used in commerce” they gain trademark rights as per Section 45 of the Lanham Act.[5. Lanham (Trademark) Act (15 U.S.C.) Index,, (last visit March 10, 2013).]

The “use in commerce” requirement is where it gets tricky for current college athletes, since profiting from their own image is a violation of NCAA rules.[6. College Athletes and Trademark Rights,, (last visit March 8, 2013).] Manziel is not the first college athlete to file for a trademark (Robert Griffin, Anthony Davis, Harrison Barnes all filed while still technically students),[7. Supra note ii.] but what makes his case unique is that Manziel is the first athlete still currently playing, as the aforementioned athletes did not start use of their respective marks until after leaving school. With his eligibility on the line, Manziel (with the help of a family attorney) set up JMAN2, L.L.C. and licensed the use of ‘Johnny Football,’ in order to satisfy the use in commerce requirement and obtain trademark rights to his nickname. Manziel then sued those using his mark with out his permission for trademark infringement.[8. Supra note v.]

In a recent ruling, the NCAA said that Manziel was allowed to keep any monetary damages that the courts were willing to award him for his current infringement case involving a man that sold t-shirts with the slogan ‘Keep Calm and Johnny Football.’[9. Brent Zwerneman, Manziel can keep earnings from trademark suit, Houston Chronicle, (February 27, 2013),] So what’s keeping other athletes from creating a trademark, having a booster use that mark ‘without permission,’ suing that booster, and settling the suit for a large chunk of change? Seems like the NCAA would be creating a large loophole for athletes to get paid by rich boosters by allowing the athletes to collect on court awarded damages. However, the NCAA also stated that Manziel’s case was a suit between a private entity (Manziel’s company) and a 3rd party (not a booster or his school or anyone related to the two).[10. Id.] The NCAA is aware of the loophole and stated that any athlete who tried to intentionally create an intellectual property lawsuit with the sole purpose of obtaining a large sum of money will have their case reviewed closely with the possible outcome of losing eligibility.[11. NCAA closes Johnny Manziel amateurism rules loophole,, (last visit March 8, 2013).]

Granted, not every athlete has the prominence that Johnny Manziel has in the sports world. The more popular the athlete, the easier it will be for that athlete to obtain a trademark for their slogan, nickname or gesture. This is only the beginning of what has the makings of a profitable venture for Johnny Football, and it is one that is sure to be followed by future college athletes. Due to the fact that athletes that are similar to Manziel are few and far between, it is unlikely that the NCAA is as prepared on this issue as they should be. It will be interesting to see how they proceed once other athletes who achieve the fame of Manziel follow suit. In my opinion, when an incredibly talented athlete has achieved a trademarkable slogan, nickname or gesture, the NCAA should not be able to keep that athlete from profiting off that trademark solely because they currently play for a college team. I would think it is in the NCAA’s best interest to create some type of bylaw in the future to allow athletes to profit from a trademark that their talent has earned them. The amount of athletes with similar notoriety to Johnny Football may be slim, but at least now there is a legal ‘loophole’ for those athletes to obtain some of the profits resulting from the use of their trademark.

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