What started out as an effort by the father of Marvin Bagley III to show support for his son threatened last week to spin into a potential NCAA issue.
The father of Duke freshman forward Marvin Bagley III designed white long- and short-sleeved T-shirts with an image of his son’s screaming face and his distinctive hairstyle in royal blue printed on the front. Bagley’s father, Marvin Bagley Jr., gave some of the shirts to the Cameron Crazies before Duke’s win over Wake Forest on Jan. 13. Fans were seen wearing the T-shirts at the game.
But on Jan. 14, the elder Bagley alerted people in posts on Facebook and Twitter that those shirts had been copied and were being sold online. He warned consumers about buying the T-shirts from TeeChip Pro, a website “that allows its users to design and sell their own T-shirts and other merchandise.”
On that site, the same image of Bagley can be ordered on merchandise such as cell phone cases, mugs, T-shirts and hooded sweatshirts. It is unclear whether a website user or the website company itself is offering the merchandise.
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As of Thursday evening, the TeeChip Pro products with the Bagley image, listed as “limited edition,” were still for sale. A countdown clock on the listings of that merchandise suggests the products would be discontinued Friday morning. The Bagley merchandise ranges in price from $22.99 to $42.99.
In Marvin Bagley Jr.’s social media posts, he claims what TeeChip Pro is selling is illegal.
“THESE CROOKS on this website tried to copy my shirt and ILLEGALLY profit on my son’s name, image and likeness!” he wrote on Facebook on Jan. 14.
TeeChip Pro did not respond to specific questions about the T-shirts. The company did, however, respond with generic emails and provided a non-working phone number.
Jay Bilas, an ESPN college basketball analyst, attorney and outspoken critic of the NCAA, said “generally if you take the name and likeness of an individual, whether it be a public figure or not, and use it for commercial purposes without the express consent of the individual, then that would likely be a violation of copyright law.”
NCAA rules prohibit athletes or their families from making money off of their likeness. The NCAA can also punish athletes if someone else tries to make money off of their likeness without their knowledge, unless necessary steps are taken to prevent the sale.
According to the NCAA’s bylaws, “If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”
Jon Jackson, a spokesperson for Duke athletics, said the school’s licensing and legal teams were aware of the issue and “will take whatever action is necessary for NCAA, intellectual property and trademark purposes.”
“This is not the first time we’ve had to address this kind of issue with one of our student-athletes and we are taking the necessary steps through our compliance office and legal counsel to address it,” he said. “In all other instances such as this, the eligibility of the student-athletes was not in question.”
Meghan Durham, an NCAA spokesperson, said generally speaking, the student or school might send a “cease and desist” letter to the company selling the merchandise.
Efforts to reach Marvin Bagley Jr. were unsuccessful. He wrote on Facebook on Jan. 12 that he created the T-shirts to be worn in support of his son playing on national television. He said he gave away a few to fans and posted a video of eight people holding the shirts and saying “Go, Marvin.”
A Google search for “Marvin Bagley III T-shirts” shows a variety of different styles of shirts, jerseys and hoodies with Bagley’s likeness or his No. 35 being sold on different websites.
The situation comes at a time when athletes and former athletes are challenging the NCAA’s amateurism rules, which restrict compensation for college athletes outside of scholarships. A player can be ruled ineligible if they make money off their own likeness, image or skills.
Last year, a University of Central Florida kicker, who had made money off of YouTube by recording and posting his day-to-day life, was declared ineligible because he refused the NCAA’s request to stop making the videos.
In 2009, former UCLA basketball player, Ed O’Bannon, sued the NCAA over whether athletes should be compensated for the commercial use of their image, name and likeness. In 2014, a judge ruled that the NCAA’s rules and bylaws were in violation of anti-trust laws. The judge ordered that schools should be allowed to offer the full cost of attendance, which covered cost-of-living expenses that were not part of NCAA scholarships. The judge also said that schools could also put up to $5,000 for every year of eligibility in a trust for each athlete, but the Ninth Circuit Court of Appeals later reversed that particular stipulation.
Also in 2014, former Clemson football player Martin Jenkins and other players sued the NCAA alleging that the institution and its schools conspired to cap the value of athletic scholarships to room, board, books, fees and tuition. In December, the roughly 53,000 athletes suing the NCAA received $208 million in a settlement.
Bagley, a 6-11, 234-pound forward, leads the ACC in scoring and rebounding, and is one of the most popular and talented college basketball players in the country. He’s expected to be one of the top picks in the NBA draft in June. He averages 22 points and 11.7 rebounds per game.
Bilas, who believes college players should be able to receive money for their image and likeness, said there has always been tension and contradiction in the NCAA’s amateurism rule.
“And this is one of the things that sort of points up how ridiculous it is,” he said, “That the university and NCAA can use Marvin Bagley’s name and likeness for their benefit all they like, but if the player or someone on behalf of the player were to use it, that would be a violation.”