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Monday, June 16, 2014
What's in a (Jersey) Number?

Allen Reed with The Eagle in Bryan-College Station has an interesting piece about Texas A&M's decision to stop selling No. 2 football jerseys and only license jerseys with a generic number for the foreseeable future.  ESPN's Darren Rovell reported earlier this month that Arizona and Northwestern have also elected to stop selling jerseys with the star players' numbers.  While this is a "no brainer" for universities to move away from selling jerseys with the widely-recognized number of their famous player, universities never should have started selling them to begin with.  Here is my take on this topic, which I wrote in a recent law review article:
  Much more recently, however, the first college athlete with remaining eligibility to file a lawsuit on an individual basis against a third party for using his name in a commercial product without his permission came from the 2012 Heisman Trophy winner, Johnny Manziel, with respect to the third-party sale of "Johnny Football" t-shirts.
  The pending Manziel lawsuit and settlement of the video game-likeness lawsuits, taken together, set the stage for what will be the next wave of college athlete litigation: challenges against universities for commercial use of players’ identities in the context of jersey sales. State right of publicity laws generally do not require a plaintiff to establish that his or her actual name or picture is being used in a commercial product; the identity element to establish a cause of action is broadly construed to mean if the public would make the connection that the defendant was referring to the plaintiff. Moreover, the college football and basketball players who compete in major college sports do not assign to their universities the rights to use their widely-recognized game jersey number in connection with the commercial sale of jerseys.


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