Ownership Questions About Name and Likeness Limiting Number of Sports Jerseys for Sale - Literally

Some universities and colleges are selling only sports jerseys with supposedly generic numbers in order to avoid challenges from athletes who believe they should be compensated for their intellectual property.

Of course, that some of those generic numbers in any given year match the numbers worn by their star players is purely a coincidence. JL

Marc Tracy reports in the New York Times:

If schools are selling jerseys with the numbers of their ‘star’ players, they’re intentionally admitting that there’s commercial value in individual players beyond just the team uniform.

Last year, any Ohio State fan could buy an officially licensed Buckeyes football jersey bearing No. 97. Though N.C.A.A. rules prohibit colleges from selling jerseys with players’ names on them, Ohio State fans understood what a scarlet jersey with a white 97 meant: a tribute to the star defensive end Joey Bosa, who wears the number when the Buckeyes play.

But as a federal court deliberates on whether it is fair for universities to make money off the commercial use of athletes’ names, images and likenesses, a growing number of colleges have quietly decided to stop selling team jerseys with popular players’ numbers.

Instead, they are using ostensibly anodyne digits. This season, for instance, official Ohio State jerseys available for sale will bear only No. 1 or No. 15 — a reference to 2015. (Jerseys with other numbers are currently available, but they are pre-existing inventory; Cardale Jones fans must scoop up his No. 12 before it sells out for good.)

In the future, university officials said, Ohio State’s retail jerseys will follow that new pattern of featuring either No. 1 or the last two digits of the year. Other numbers will be available, but only on personalized jerseys that feature a buyer-selected name, which cannot be that of a current or former player.

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This season official Ohio State jerseys available for sale will bear only No. 1 or No. 15 — as in, 2015. Ezekiel Elliott, the Buckeyes’ Heisman-hopeful running back, happens to wear that number. Credit Cooper Neill for The New York Times

The change is partly a result of the Ed O’Bannon case, which explicitly challenged colleges’ right to make money off players’ images without compensation. A federal appeals court temporarily stayed a ruling that declared that N.C.A.A. rules banning such compensation were a violation of antitrust laws.

While the college sports establishment has appealed that ruling, and could still prevail in court, the lawsuit and the discussion surrounding it appear to have prompted introspection about whether some forms of commercialization in college sports are too personal. Last year, before the O’Bannon decision, the N.C.A.A. told members that athletes need not be required to sign releases for the use of their names and likenesses for promotional purposes.

“It’s philosophical — where we should be,” Ohio State Athletic Director Gene Smith said of his department’s decision to limit the jerseys it sells. He cited the O’Bannon case and “other issues,” adding, “We felt it was the right time.”

Ohio State is not alone. Miami and Nebraska told news outlets in recent weeks that they were adopting similar policies. Mississippi State confirmed that it would offer jerseys with Nos. 1, 15 and 78. (The university was founded in 1878.) A spokesman said Michigan would sell Nos. 1 and 16 (this year’s seniors are the class of 2016) and also No. 4 — the number Coach Jim Harbaugh wore when he was the Wolverines’ quarterback in the 1980s — while a spokesman for Connecticut said it would sell only No. 15.

The policy is a “bit of a departure,” said Rick Van Brimmer, Ohio State’s director of trademarks and licensing. But he said many Big Ten members were of the same mind, and programs in other conferences have made similar changes. An Arizona spokesman said that the university exclusively sold No. 14 last season and would sell only No. 15 this season. Duke, according to Athletic Director Kevin White, is in discussions about moving in that direction as well, although it has not made a final decision.

Scott Wetherbee, the senior associate athletic director for external affairs at Mississippi State, said his department’s decision to move away from jerseys closely linked to popular players — a policy that began with last season’s basketball jerseys — was not just a pre-emptive reaction to the potential fallout from the O’Bannon case.

“We started to talk about whether you’re taking advantage of a student-athlete, their likeness

their number,” he said. “I think most people understand the landscape has changed a little bit, and we need to be smart.”

In the future, Wetherbee said, players will not be assigned the numbers of for-sale jerseys. (Mississippi State quarterback Dak Prescott, a Heisman Trophy favorite, happens to wear No. 15.) Wetherbee also said he hoped that the absence of player-specific jerseys would “take pressure off a kid.”

Yet not all colleges have made the change. University representatives from Oregon and Southern California said their team jersey sales would continue as before. A search of U.S.C.’s online shop revealed jerseys with the No. 6 worn by quarterback Cody Kessler, another Heisman contender.

“The feedback we’ve received from current players and their families is they want jerseys with their numbers on them available to be sold,” Tim Tessalone, a U.S.C. spokesman, said. “We also have our players sign name-likeness permission forms. And for former players, we go directly to them for permission.”

The changes are not likely to have huge financial repercussions. Jersey sales constitute about 5 percent of the college apparel business, compared with 25 percent to 30 percent in professional leagues, according to the licensed sports merchandise retailer Fanatics, in part because top college athletes spend at most a few years on campus.

“It will naturally have some impact, but it’s not going to be a difference maker,” said Gary Gertzog, Fanatics’ executive vice president for business affairs.

And in the context of athletics departments that bring in tens of millions of dollars every year through broadcast rights, donations and ticket sales, jersey sales are, in the words of the Oregon spokesman Craig Pintens, “such a small fraction of the overall revenue picture.”

Still, the mere existence of replica jerseys shows they have value, perhaps buttressing the main argument in the O’Bannon case.

“I think if schools are selling jerseys with the numbers of their ‘star’ players, they’re intentionally admitting that there’s commercial value in individual players beyond just the team uniform,” said Warren Zola, executive director of the Boston College Chief Executives Club at the Carroll School of Management.

By contrast, Zola added, in the past, “the N.C.A.A. has indicated, and individual presidents and athletic directors have indicated, that the value emanates from university and conference, not from individual students.”

At least in Ohio State’s case, it will be difficult to use this season’s jersey sales to discern whether the N.C.A.A.’s argument is valid: This fall, fans might choose No. 15 for more obvious reasons.

“Ezekiel Elliott happens to be 15,” Ohio State’s Smith said of the Buckeyes’ bruising, Heisman-hopeful running back. “Next year, J. T. Barrett,” Smith said of their sophomore quarterback, who will presumably continue to wear No. 16 in 2016.

That is a coincidence, Smith said, and the problem should be cleared up by the 2020s. “The lower numbers are the ones that sell,” he said.