Determining what counts as an “authentic” jersey will have to wait for another day.
Last Friday, U.S. District Judge Virginia Hernandez Covington dismissed a lawsuit brought by Florida resident David Inouye against Adidas over what Inouye argued was unlawful marketing of “authentic” NHL jerseys. Raising consumer fraud, breach of contract and warranty claims, Inouye says he wouldn’t have paid at least $179.99 in late 2021 for an “authentic” jersey if he knew it wasn’t the same or substantially similar to those worn in the NHL.
As Covington explained, although Adidas markets the jerseys as authentic, the jerseys are not identical to the ones worn by NHL players or of the same quality. There are assorted differences in the cut, fabric, stitching, neck hole and dimples, which enable air to flow through the jersey. Plus, the ones sold to consumers are made in Indonesia, whereas those worn by NHL players are made in Canada.
But those differences do not mean that Adidas broke any laws.
In fact, Covington notes that Inouye didn’t even buy a jersey from Adidas. Instead, he purchased it from a “third-party vendor.” Inouye doesn’t explain “how his purchases from Fanatics—and other unnamed third-party vendors—directly benefited Adidas.”
Inouye also, Covington noted, doesn’t claim to have been in privity— a legally enforceable relationship—with Adidas. Inouye instead argued there was “substantial direct contact” from Adidas in the form of Adidas promoting the product on its website and through third-party stores. Covington wasn’t persuaded. She stressed there was no “direct contact” between Inouye and Adidas and cited case law holding that “untargeted marketing” is insufficient.
Covington also concluded that while Inouye says he wouldn’t have bought the jersey “if the true facts had been known,” he doesn’t indicate when he saw alleged misrepresentations or if those claims were seen on a product label or on the Adidas or Fanatics websites. “Mr. Inouye indicates when he purchased the product [but] he does not indicate when he viewed the alleged representation,” the judge wrote.
It’s conceivable that a similarly aggrieved consumer who had a more direct purchasing relationship with Adidas might enjoy more traction in a lawsuit. The company has faced this type of litigation in other parts of the country, with outcomes still to be determined.
Covington’s ruling hints at a possibly unintended benefit from how leagues have structured their e-commerce efforts. All the major U.S. leagues have pricey partnerships with Adidas or Nike, but they all also have e-commerce deals with Fanatics. Michael Rubin’s company operates the online shops for the NFL, NBA, NHL, MLB and MLS, along with dozens of their teams, a set-up that means the vast majority of officially licensed product is purchased from Fanatics, not from the sportswear company whose logo is on the priciest jerseys. Covington’s dismissal focused more on the presence of Fanatics as a middleman than the basic merits of Inouye’s claims.
The NHL’s jersey partnership with Adidas ends following the 2023-24 NHL season. A new vendor has not yet been named.
