12th Man Copyright Lawsuit against Texas A&M

by Travis Normand
January 23, 2017

I first saw this reported by the SETexasRecord.com, but I have since seen it reported by several other media outlets as well.

A book publisher and author, Michael Bynum, (Plaintiffs) have sued the Texas A&M Athletic Department, the 12th Man Foundation, and others, (Defendants) in federal court for what appears to be a claim of copyright infringement. The lawsuit was filed on January 19, 2017.

The Plaintiffs claim that Defendants stole the author’s unpublished biography of E. King Gill, and “copied and distributed it as if it was their own” (see lawsuit paragraph 1). For those who may not be aware, E. King Gill was the student behind Texas A&M’s famous 12th Man tradition.

Texas A&M has been involved in several lawsuits over the years in order to protect their federal 12th Man trademark. The most prominent of these lawsuits involved the NFL’s Seattle Seahawks and Indianapolis Colts.

In this current lawsuit, Plaintiffs allege that Defendants had received a PDF copy of Bynum’s unpublished book for the limited purpose of fact-checking, locating additional photos, and an option to purchase copies for former students. The lawsuit goes on to allege that one particular Defendant retyped the biography, changed its title, and deleted Bynum’s name before republishing the material (see lawsuit paragraph 4, etc.).

Plaintiffs claim that by “unlawfully copying and publishing the heart of Bynums work . . . Defendants destroyed Plaintiffs’ prospects for a successful print run, and the . . . book remains unpublished to this day” (see lawsuit paragraph 5).

The lawsuit was filed in the Southern District of Texas, Federal Court, Houston Texas as Case No. 4:17-CV-0181.  Plaintiffs’ original complaint can been seen below.

Bynum v. Texas A&M Univ. Athletic Dept., 17-cv-00181 (S.D. Tex.)

 

Other information regarding this case:

Plaintiff’s Attorney: Natalie L. Arbaugh (is now apparently with a different law firm from when the case was filed).

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Silence at Baylor (Texas Monthly)

This article appeared in Texas Monthly on August 20, 2015.  If you haven’t read it, you should.

Silence at Baylor
by Jessica Luther and Dan Solomon

A much-talked-about football player at Baylor University—whom coaches “expect back” this fall—is currently on trial for the sexual assault of a fellow student. Questions now swirl around what the program knew and when they knew it.

Read the entire article at texasmonthly.com

Maryland’s Unsportsmanlike Conduct (Updated Nov. 3, 2014)

by Travis Normand

Today, Maryland defeated Penn State, 20-19.  However, before the game, Maryland’s team captains refused to shake hands with Penn State’s team captains.  I have watched a lot of college football in my life and I have never seen such a blatant act of unsportsmanlike conduct.  It is my understanding that Maryland was flagged for this stunt, and I truly hope that was the case.

I won’t rehash the specifics of the incident, as you can read about it on ESPN.com, ESPN.com (Big 10 Blog), SI.com, and BleacherReport.com (video).

Photo from ESPN.com

**Update:  Nov. 3, 2014 – The Big 10 Conference has fined Maryland $10K for its pre-game behavior.  You can read more about this fine / punishment at Yahoo Sports and / or SI.com.  You can also read the Big 10’s official press release about this punishment at Big10.org (and I have also posted it below).

According to the press release, the conference did not specifically punish Maryland for the failure to shake hands prior to the game.  However, it did call the behavior “exceptionally regrettable.”

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Footblaw: NCAA violations and autograph brokers

by Travis Normand

In light of the accusations against Johnny Manziel of getting paid for autographs, the following concerns a cause of action that would apparently be available to Texas A&M if Manziel and/or Texas A&M is found to have violated a NCAA rule.  The cause of action is not necessarily available to the Manziels despite the NCAA ruling earlier this year that they (or their corporation) can profit from a trademark lawsuit.

However, none of this addresses the jurisdiction question of whether or not any of the autograph brokers who could be potentially liable under this statute, are subject to the jurisdiction of the State of Texas.  The brokers who orchestrated the reported signings with Manziel that allegedly happened in Connecticut and/or Florida might be out of reach for Texas law.  However, there was one signing that was reported to have happened in Houston, which would probably make the broker involved subject to Texas jurisdiction.

The State of Texas passed legislation in 1987 that could hold the autograph hounds liable for their actions if they paid Manziel for his autograph in violation of NCAA legislation. Section 131.004 of the Texas Civil Practice and Remedies Code states “a person who violates a rule of a national collegiate athletic association adopted by this chapter is liable for damages in an action brought by an institution if (1) the person knew or reasonably should have know that a rule was violated; and (2) the violation of the rule is a contributing factor to disciplinary action taken by the national collegiate athletic association against the institution or a student at the institution.” This would give Texas A&M University the authority to file suit against the autograph hounds if it or Manziel receives punishment from the NCAA. Accordingly, pursuant to Sections 131.006 and 131.007 of the Texas Civil Practice and Remedies Code, Texas A&M University’s damages may include “lost television revenues and lost ticket sales of regular season and post-season athletic events” and “reasonable attorney’s fees and costs.” Certainly, if Manziel is not on the field for the Aggies, there could be substantial losses in revenue.

In short, autograph hounds might want to consider how loudly they express their purported shortcomings and alleged payments to Manziel. There is a Texas statute that can provide a hammer for their alleged actions.

The above block quote was taken from an article that can be found HERE.

6.4.2 Representatives of Athletics Interests . . . it’s not just for donors!

NCAA - 25Kby Travis Normand

Count me among those who previously thought that one had to make a financial contribution in order to be considered a “booster” (for NCAA compliance purposes).

From the NCAA Bylaws:

6.4.2 Representatives of Athletics Interests.

An institution’s “responsibility” for the conduct of its intercollegiate athletics program shall include responsibility for the acts of individuals, a corporate entity (e.g., apparel or equipment manufacturer) or other organization when a member of the institution’s executive or athletics administration or an athletics department staff member has knowledge or should have knowledge that such an individual, corporate entity or other organization:

(a) Has participated in or is a member of an agency or organization as described in Constitution 6.4.1;

(b) Has made financial contributions to the athletics department or to an athletics booster organization of that institution;

(c) Has been requested by the athletics department staff to assist in the recruitment of prospective student-athletes or is assisting in the recruitment of prospective student-athletes;

(d) Has assisted or is assisting in providing benefits to enrolled student-athletes; or

(e) Is otherwise involved in promoting the institution’s athletics program.

Link to NCAA Bylaws in PDF

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NCAA Committee on Infractions Report (Oregon) – June 26, 2013

Oregon Donald Duck - 16Kby Travis Normand

After a 28-month long investigation, the NCAA has finally announced the sanctions that are to be placed on the University of Oregon’s football program.

I believe this is the first time in NCAA history that a program has been banned from using subscription recruiting services.  (See NCAA Report, Section V., Penalty No. 7, page 25).

NCAA - 25K