What counts as an “authentic” jersey lies at the heart of a new lawsuit filed by a Florida man.
David Inouye contends Adidas has relied on “omissions, ambiguities, half-truths” and other “deceptive representations” to sell authentic NHL jerseys that are neither identical nor substantially similar to those worn by NHL players.
Inouye’s 20-page complaint was signed by Florida attorney Will Wright and filed in a Tampa federal district court on Monday. Judge Virginia Maria Hernandez Covington, a former federal prosecutor, has been assigned Inouye v. Adidas. Inouye seeks for his case to be certified as a class action on behalf of two classes of authentic jersey customers, one for Floridians and one for those in the 49 other states and D.C.
The NHL, like most major U.S. leagues, sells multiple tiers of jerseys for fans. The most expensive, the $230 “authentic” jerseys, are made by Adidas, with the highest-end materials, patches and stitching. The next tier, the $169 “breakaway” jerseys, are made by Fanatics, and are materially different than the authentic. Fanatics also makes a mass-retail version, not available on its website, that is cheaper than the “breakaway.”
In the sports apparel industry, the definition of an “authentic” jersey varies by sport. Dick’s Sporting Goods defines an authentic hockey jersey as “the on-ice apparel worn by your favorite professional team.” It is one that features “a tailored fit and premium fabric.” In contrast, an “official” hockey jersey offers a “great budget choice for fans wanting a quality sweater fit for the bleachers” and uses “a lighter fabric with less tech options.” The lowest level is a “replica,” which “often features screen printed or iron-on letters and numbering” and “uses lesser grade fabrics and typically comes in a looser fit.” In contrast, Dick’s defines an authentic football jersey as “similar to an on-field jersey” but “at a more affordable price,” whereas “on-field” football jerseys are “highest quality jersey available to football fans” and “the same jersey worn by professional athletes.”
Adidas sells these jerseys on its website and through third-party stores and websites, including fanatics.com. In 2015, the NHL announced it had signed a seven-year deal with Adidas to produce its uniforms beginning in the 2017-18 season. The NHL had previously partnered with Reebok.
Inouye’s complaint contends the “authentic” and “authentic-pro” jerseys advertised to consumers are different—and far inferior. The fabric, stitching and cut are all described as distinct, leading to a product that is portrayed as less thick, less durable and tighter. The complaint also refers to smaller dimples, which allegedly render the jersey “less efficient at dealing with moisture and airflow than those worn by NHL players.” A different country of production, Indonesia versus Canada, is also mentioned. As told by Inouye, Adidas jerseys fail to “conform” to the company’s “affirmations of fact and promises.”
Inouye says he relied on Adidas’ assurances that the jerseys were authentic. He was “disappointed” to discover they were not, as he sees it, “authentic,” a term he understood to mean “genuine and substantially similar or identical to those worn by NHL players.” He maintains that Adidas has violated Florida’s consumer protection statute and the federal Magnuson Moss Warranty Act; breached contracts, express warranties and implied warranties; and engaged in negligent misrepresentation, fraud and unjust enrichment.
In a statement to Sportico, Adidas said it “won’t comment on pending litigation.” In the weeks ahead, however, attorneys for the company will answer Inouye’s complaint. Expect them to both deny the company has broken any laws and seek a swift dismissal of the case. The attorneys will offer defenses, including that neither Adidas nor Fanatics markets the authentic jerseys as clones, duplicates or exact replicas. Instead, the jerseys are portrayed more as inspired representations that offer a very similar experience.
Consider the “authentic” New York Rangers jersey for left wing Artemi Panarin. Adidas.com describes it as “like the one Panarin wears for home games.” The word “like” is important. It signals that the authentic jersey is similar, but different, to the one used by Panarin. The description also notifies consumers that the jersey is made with recycled materials and moisture-absorbing fabric.
Similarly, Fanatics.com says the authentic jersey for Boston Bruins center Patrice Bergeron “features the same details that Patrice Bergeron wears on game day.” The use of “same details” could be viewed as closer to the actual jersey than “like” it. On the other hand, that description doesn’t expressly guarantee all the details are the same. Adidas can argue the jerseys sold by Fanatics meet their product descriptions.
Under the law, sellers are also afforded a certain degree of “puffery” in their advertising. Puffery refers to subjective, often exaggerated, claims that a reasonable consumer would not rely on. For example, when a restaurant says it has the “best subs in town,” a skeptical consumer wouldn’t have a viable case if they simply disagreed about what subs taste best. Adidas mentioning that “Panarin knows how to control the puck,” doesn’t mean that an ordinary person who puts on a Panarin jersey should expect a similar experience merely because the jersey features “an authentic tie-down fight strap and a loose fit.”
Consumer expectations are also an important factor. What does “authentic” mean to an ordinary consumer when purchasing NHL jerseys?
Case law doesn’t provide much help, as judges sometimes use “authentic” and “replica” interchangeably. Inouye’s complaint cites the dictionary.com definition of “authentic,” which is defined in several ways, including as “not false or copied; genuine; real.” Dictionary.com illustrates the word by referring to an “authentic antique.” Black’s Law Dictionary, the most widely cited law book in the world, offers a similar definition: “genuine; true; having the character and authority of an original.”
This isn’t the first legal dispute involving Adidas and “authentic” jerseys. In 1999, the company lost an antitrust lawsuit against the NCAA over the association limiting the size of advertising space on uniforms. Interestingly, Judge George VanBebber wrote that Adidas offered a definition of “authentic” that it might not want applied to Inouye v. Adidas. “Adidas reasons,” the judge wrote at the time, “that a replica uniform will not be ‘authentic’ and, therefore, not desirable to consumers unless it contains all the elements of the uniform worn in competition, which, in time, may include the NCAA logo.”