UK says stop selling Anthony Davis posters on eBay

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By Rachel Aretakis

A free poster turned into a quick profit for some UK basketball fans.

The Anthony Davis “wingspan” posters, which were passed out to everyone in Rupp Arena for free at Tuesday’s game, have generated buzz as fans have sold them on eBay.

UK has issued a cease-and-desist letter to those selling the posters online.

DeWayne Peevy, UK Athletics spokesman, said it is a normal process to send cease-and-desist letters to anyone who is profiting off of the image or name of a current student athlete.

“We’ve been doing it for years,” Peevy said. “It’s something we’ve always done.”

The standard procedure is done to protect student athletes’ eligibility, he said.

According to an NCAA policy, a student athlete becomes ineligible if he accepts money or permits use of his name to advertise or promote sale or use of commercial product or service, said Peter Rush, a Chicago attorney who has experience with NCAA policy.

Though the university sends the letters frequently, Peevy said he thinks it has become a bigger issue because someone put that letter out to the public. He said generally people are embarrassed when they get them and stop selling the items.

There is always a chance for an NCAA violation, Peevy said, but they do everything they can to prevent it. “We are taking the steps to show it isn’t condoned,” Peevy said.

The NCAA states student athletes are amateurs, and if their image is used by someone not approved to promote anything, then the student athlete loses his or her amateur status, Rush said.

When that happens, “they become a professional … and cannot compete as an amateur,” Rush said. “That’s why Kentucky players cannot get paid.”

Frank LoMonte, executive director for the Student Press Law Center, said if student athletes make a profit, it undermines the amateur nature of the sport.

“The main concern is that the NCAA doesn’t want athletes getting any kind of kick-back off of the use of their name or image,” LoMonte said. The NCAA wouldn’t want a college football or basketball player setting up a side business of selling jerseys to make a profit, he said.

“As long as the athlete makes it clear that they don’t endorse the use, generally the NCAA doesn’t take anymore steps,” Rush said. “The NCAA reaches no further than the student athlete.”

Rush said Davis’ performance, image and reputation is being used to generate money, all from ticket sales, jerseys and other things.

“That does not convert Mr. Davis into a non-amateur or professional for one reason — he doesn’t get any of it,” Rush said. He added, “if you really want it to be true amateurism, the student athlete shouldn’t be exploited at all. His name and image shouldn’t be used for anything.”

As long as the university makes it well known that it disapproves of the selling of the poster, Rush said, it isn’t required to do more. He said the NCAA would then take it from there if need be.

The NCAA policy is the reason why university sport jerseys only have numbers and not names. The most popular selling number is based on who wears it, Rush said, though the players’ names aren’t on the jerseys.

While the student athlete cannot profit from the sale of the posters, it is legal for fans to sell the poster and make money.

“It’s not illegal,” Peevy said, “but the NCAA says we can’t make a profit — their parents can’t and they can’t — so we try to prevent others from doing it as well.”

Once the university learns someone is trying to profit, it is supposed to try and stop it, LoMonte said.

LoMonte, who thinks the letters were reasonable, said the university was probably doing what it needed to satisfy the NCAA.

“UK wouldn’t be liable as long as they show the NCAA that they made some effort to stop the sale,” LoMonte said.

The NCAA only has jurisdiction over the institution and the players. It doesn’t have jurisdiction over the average student, and “certainly not over some unknown buyer or seller on eBay,” he said.

Schools have been giving free merchandise forever, LoMonte said, and with sites like eBay, the merchandise can be resold on a mass scale.

“If they want to promote their athletes in this way, then they’re going to run some risks,” LoMonte said. “People are going to see a money-making opportunity.”

Unless the posters were given under some contractual agreement that stated the posters could not be resold, the owner has the right to sell it, he said.

It is very common to sell autographed merchandise or memorabilia, LoMonte said, so the cease-and-desist

letters probably are an empty threat because there is no legal action the university could take.

“(The university) can certainly issue threats and demands,” LoMonte said, “but I’m not sure if they’d be much in a position to make that stick.”

The only possible action UK could take would be some sort of trademark infringement action, he said. “I’m not aware of anybody bringing one of those in regard to sports memorabilia,” LoMonte said, “because you’re not claiming that this product is something it’s not.”

Peevy said it isn’t really a legal issue.

“We have to do that to be proactive instead of reactive. If it became an issue, at least we have on record the cease-and-desist letters and that we have been proactive,” he said.

Stephen Dittmore, an assistant professor of recreation and sports management at the University of Arkansas, said universities give away free merchandise to fans all the time.

“You just happen to have an extraordinary athlete having an extraordinary season,” Dittmore said.

He said from a public relations standpoint, the letters were the appropriate thing to do and that UK Athletics could not or should not have done anything differently.

“Anything that revolves around basketball gets analyzed three different ways,” Dittmore said.

Adam Ivetic, a UK junior and the Team Wildcat chairperson, was one of less than 10 people who put posters in every seat of Rupp Arena on Tuesday.

He said they were there from 7:30 a.m. to 3:30 p.m. handing them out.

“I was there the whole time, seeing the way people were walking around and clearing away whole rows (of posters),” Ivetic said.

Team Wildcat, a student spirit organization, coordinates events such as those in the eRUPPtion zone, he said. Like everyone else at the game, Ivetic also received a poster.

“I think it’s something worth keeping, to put on a wall,” Ivetic said.

Originally, the university was only going to print five to six thousand posters and send them to the media and others, Peevy said. They added 24,000 posters for fans at the game.

“We try to give our fans something they can have that maybe everyone doesn’t have,” Peevy said.

He said the fans’ choices to sell the posters could decrease the chance of UK doing something similar in the future.

“It sucked for other people because UK was trying to do something nice for (Davis) and the fans,” Ivetic said.

As of Friday, people continued to bid for the Davis posters on eBay, with some bids more than $100.

“You definitely sympathize with the school,” LoMonte said, “that they try to do something good with the athlete, and now are worried about jeopardizing his eligibility.”