As you know, there is a court challenge pending regarding the US Patent and Trademark Office allowing the “Washington Professional Football Team” to have trademark protection when it uses the name “Washington Redskins”. The challenge to that trademark is based on something called the Lanham Act which prohibits the registration of “scandalous”, “disparaging” or “immoral” trademarks. I am not a lawyer, so fear not; I am not about to go into some kind of history of the Lanham Act and how it has been applied. Rather, I want to focus on how the case may have taken a slight change in vector heading recently.
As the case made its way through the judiciary, I figured that it would be decided on the degree of “scandalous” and/or the level of “disparaging” became associated with the team name as the proceedings moved along. It is a case that seemed to me to have some elements related to a previous Supreme Court case that caused Justice Potter Stewart to say about hard-core pornography:
“I know it when I see it.”
However, recently the ACLU jumped into the fray with an amicus curiae brief urging the court to strike down those parts of the Lanham Act on the basis that they violate the First Amendment. I think I understand the basis of the argument to be that since the Patent and Trademark Office is a government entity, any time they apply the Lanham Act in a negative way it is a form of the government regulating speech/expression.
I am not going to try to offer an opinion on the ACLU position or on the case itself because I assert that the judge in this matter would have to be in a coma and on life-support not to have a more fundamental understanding of the matter than I do. However, one thing does confuse me about the ACLU position and perhaps someone who has been to law school might help me out here:
It seems to me that every trademark ever issued puts limitations on “speech”/”expression” by forbidding me – for example – from putting the NFL logo on a T-shirt and just giving it away. The whole idea of “property rights” seems to crash head-on into “expression rights” in a ton of circumstances. It seems to me as if the Napster case violated “free expression” as much as this case might.
We shall see how all of this plays out…
Whilst we have a brief respite in the NCAA tournament until the games next Saturday evening, take just a moment to juxtapose in your mind the idea that the NCAA will likely exceed $1B in revenue this year while it continues to maintain that it oversees amateur sports played by student-athletes. If the NCAA ever hinted that the concept of amateurism and amateur athletes was not the foundation piece for its games, the NCAA would have no reason to exist. Lest you think I am putting words in the NCAA’s figurative mouth, here is a paragraph from the NCAA website:
“Amateur competition is a bedrock principle of college athletics and the NCAA. Maintaining amateurism is crucial to preserving an academic environment in which acquiring a quality education is the first priority. In the collegiate model of sports, the young men and women competing on the field or court are students first, athletes second.”
Let me be clear. I can believe that paragraph in its entirety when it applies to Division III teams such as Linfield College football or Division II teams such as Philadelphia University basketball or even to Division I schools in places like the Ivy League or in the Metro Atlantic Athletic Conference. I cannot swallow the piety of that paragraph when it comes to the big-time schools that are participating in the basketball tournament for real especially in light of the recent revelations of academic shenanigans at Syracuse and UNC. Make no mistake, those were not actions taken by “deranged boosters” or some “rogue recruiter”; the events at Syracuse and UNC were genuine academic fraud perpetrated by or condoned by coaches, players, athletic departments and faculty.
The NCAA cannot maintain that amateurism is a “bedrock principle” and that in the “collegiate model” the athletes are “students first” so long as those kinds of activities are not crushed when they are discovered. The hypocrisy level in that statement is so great that it immediately brings to mind a quote from William F. Buckley, Jr.:
“I won’t insult your intelligence by suggesting that you really believe what you just said.”
It would seem as if the NCAA continues to live with one abiding hope in terms of continuing to play the smoke-and-mirrors game with the American public. That one abiding hope was expressed by Noel Coward:
“It’s discouraging to think how many people are shocked by honesty and how few by deceit.”
But don’t get me wrong, I love sports………