On January 19, 2017, an Alabama book editor filed sui against Texas A&M’s athletic department and the fund-raising 12th Man Foundation, accusing both entities and three school employees of posting the “heart” of his unpublished book “12th Man: The Life and Legend of Texas A&M’s E. King Gill” on its website “nearly word-for-word” in January 2014 without his permission. The lawsuit, filed in the U.S. District Court in Houston, begins by citing the Aggies Code of Honor, which states “An Aggie does not lie, cheat or steal or tolerate those who do.” The lawsuit continues by outlining details of how A&M failed to fulfil that pledge, and, more pertinently, how those actions violated the Digital Millennium Copyright Act.
The Alabama book editor, Michael J. Bynum, decided in the late 1990s to write a book on Texas A&M’s original 12th Man, E. King Gill. As the legend goes, the 12th Man tradition started in 1922 during the Dixie Classic football game in Dallas, when the Aggies’ football coach called Gill, then an A&M student, down from the stands to suit up for its injury-plagued team. Although King did not play in the game, he reportedly stated afterwards that, “I wish I could say that I went in and ran for the winning touchdown, but I did not. I simply stood by in case my team needed me.” Since then, the school’s students stand throughout its football games to honor the legend of King, and have become collectively known as the “12th Man.”
The “12th Man” trademark has been a closely guarded trademark of Texas A&M since the school trademarked it in 1990. Even the school’s website boasts that it has “fought over 550 infringement suits,” including those against breweries and even double-amputees.
Interestingly, the alleged infringement by the Aggies was at a time when the school was engaged in lawsuits and public relations campaigns against NFL teams and others to protect their “12th Man” trademark. In fact, we previously posted a story about how the Aggies even targeted our beloved Bills in their trademark protection crusade. As part of their campaign, they were able to convince teams like the Seattle Seahawks to agree to a limited license for $140,000 just to use the Twitter hashtag #12th Man.
Now, the Aggies athletic department is trying to limit the information sought by Mr. Bynum is his discovery requests for the lawsuit. Mr. Bynum filed a motion to compel the athletic department to produce information his attorney’s believe is relevant to prove his connection with Texas A&M establishes the same right to sovereign immunity afforded to the university as a Texas state institution. The Aggies athletic department countered by stating the document request is improper because Mr. Bynum seeks to demonstrate the extent of the athletic department’s legal independence from the university when the true test is merely whether it has a “separate legal existence” from the university at all. Without the information, it may be difficult for Mr. Bynum and his attorney’s to avoid a Motion to Dismiss per the athletic department’s reliance on their sovereign immunity defense.