This is somewhat off-topic for this blog, but it touches on something of a sore point, namely the indentured servitude to which men’s football and basketball players at major US universities are subjected. Basically, the universities field sports teams, and make huge amounts of money off the men’s football and basketball programs, both through direct ticket sales but primarily through television contracts and merchandising deals. Part of the myth they perpetuate is that the players are amateurs, who only play for the love the game, and that they are fairly compensated in the form of “scholarships”, whereby they pay no tuition and receive an education in exchange for playing. (That myth was partly debunked last year when the National Labor Relations Board in Chicago said that football players at Northwestern University were primarily employees, who spent upwards of 40 hours per week on football-related activities, and therefore could unionize if they chose to do so.)
Through the NCAA, the national body the universities established to oversee their sports programs, they enforce a zero-tolerance policy to ensure that players can’t capitalize on their labors or the fame that some of them gain for their exploits on the field: the players lose eligibility, and often the university is sanctioned. For example, the football team at Ohio State, a perennial powerhouse, got into hot water a few years ago when a star player offered a used jersey for sale on eBay, months after he’d played his last game. Oh, the horror! Invariably, when punishments are doled out, it is players playing years later, who weren’t even enrolled at the university when the original rules infraction took place, who are made to pay the penalty. Common decency and a sense of fair play are not the NCAA’s strong suit.
The University of Kentucky’s men’s basketball team is currently 38-0. If, as is widely expected to happen, it wins on Saturday the semifinals of the NCAA tournament, and then again on Monday in the championship, it will be the first men’s team since 1976 to complete a perfect season and the first ever to go 40-0 in a single season.
Enter a company called “40-0, LLC”, also known as “40and0.com”. That company is currently selling t-shirts, sweatshirts, socks and caps with “40-0” emblazoned thereupon – primarily, though not exclusively, in blue-and-white color scheme associated with U of K – and it has applied to register the mark “40-0” with the USPTO (application no. 86534269, still pending).
UK, for its part, has no such application pending, nor, apparently, is it presently selling similar merchandise. There is, however, a story going around today (see e.g. here and here) about U of K sending a cease-and-desist letter to the owner of the company. As usual with these popular press stories about IP issues, it’s hard to parse out the details from the mis-information. But the gist of it, apparently, can be summarized in this quote from UK’s lawyer: “We are well aware of third parties attempting to capitalize on the historic season of the University of Kentucky men's basketball team…As the University's licensing agent, we are working to vigorously protect UK's trademark rights in the marketplace from those that use the institution's indicia without permission.” Translation: if its team goes 40-0, then UK and UK alone is entitled to capitalize on that fact. Not some forward-thinking entrepreneur, and certainly not the employees, er, “students”, who accomplished the feat.
I’ll leave it to the trademark and unfair competition specialists to comment on the strength, or lack thereof, of UK’s case. I just have one question for UK: if the university were to make money from the sale of 40-0 merchandise, would you share the profits with any of the players who actually accomplished the feat?
Didn’t think so.