Hank's IP Brew — Issue #36

Howdy, y'all.

This week: the NCAA sued a sitting governor — and the legal theory it's using to do it is the same playbook that state NIL laws used to force the NCAA's hand in 2021. And an Ohio federal judge ruled that Amazon can't hide behind its own automation when its Merch on Demand platform keeps selling counterfeit designs after receiving takedown notices.

Let's get into it.

On October 13, Ohio Governor Mike DeWine signed Executive Order 2026-04D. It authorizes Ohio colleges to ignore NCAA eligibility rules and allow athletes from the high school class of 2022 — players who graduated college in May or June and have exhausted four seasons of competition — to return and play a fifth year. Three days later, on October 16, the NCAA sued him.

The complaint, drafted by attorneys from Wilkinson Stekloff and Squire Patton Boggs and filed in federal court in the Southern District of Ohio, accuses DeWine of violating the Commerce Clause, the First Amendment, and the 14th Amendment of the U.S. Constitution. It also argues he exceeded his authority under Ohio law by failing to identify any statutory or constitutional basis for the order. The NCAA wants a declaratory judgment that the order is unlawful and an injunction blocking DeWine from directing Ohio schools to disregard the association's eligibility rules.

Why DeWine did it

The Class of 2022 eligibility fight has been grinding through courts in multiple states for months. The NCAA changed its eligibility rules in June 2026 to allow up to five years of competition — but didn't make the change retroactive to athletes who had already played four seasons. Those athletes, many of them 22 or 23 years old and in some cases already signed to professional teams, sued to come back. Courts in Louisiana, Indiana, and elsewhere issued injunctions letting some of them play. Courts in Ohio — including an appellate court just last week — ruled for the NCAA.

DeWine's position: if courts in other states are letting Class of 2022 athletes play, Ohio schools shouldn't be forced to sit on the sidelines while their competitors benefit. The executive order is a competitive-leveling measure, not a legal determination on the merits.

NCAA President Charlie Baker, himself a former Republican governor, was direct: "One elected official seeking to make their own rules for their own schools' advantage is a terrible way to run athletic competitions." He noted that NCAA members "voted unanimously to implement the age-based eligibility change in this way" and that multiple appellate courts have emphasized the importance of consistent enforcement.

The legal theories — and DeWine's defenses

The NCAA's strongest argument is the Dormant Commerce Clause. The Constitution's Commerce Clause doesn't just give Congress the power to regulate interstate commerce — it implicitly limits states from interfering with it. The NCAA's complaint argues that DeWine's order "unlawfully burdens interstate commerce" by giving Ohio schools a unilateral competitive advantage in a national athletic marketplace. Authorizing Ohio member schools — which have contractually agreed to follow NCAA rules — to violate those rules is the Contract Clause angle: states generally cannot impair the obligations of private contracts.

DeWine is expected to raise two defenses. The more interesting one is ripeness: no Ohio school has actually put an ineligible player on a roster yet, so the dispute may be too contingent and speculative for a federal court to decide right now. Legal commentators tracking the case see this as DeWine's stronger procedural argument — the harm the NCAA is worried about hasn't happened yet, and courts are generally reluctant to issue injunctions against potential future conduct. The second defense is sovereign immunity, which generally protects state officials from certain federal suits. The NCAA preemptively addressed this in its complaint by invoking the ultra vires doctrine: a state official acting beyond their legal authority loses sovereign immunity protection, and the NCAA argues DeWine had no legal authority for this order at all.

There's also a striking internal contradiction the NCAA will likely exploit. An NCAA vice president testified in June 2026 that the NCAA Manual "determines who competes." By October, the association was describing the Manual as a "courtesy." Courts notice when parties change their characterization of their own governing documents.

Why this echoes 2021 — and why it matters

The playbook is familiar. In 2021, Alabama became one of the first states to pass a law allowing college athletes to profit from their name, image, and likeness — directly defying the NCAA's existing rules. The NCAA, facing a patchwork of conflicting state laws and the threat of antitrust litigation, dropped its NIL restrictions in July 2021. State-level action forced a national policy change.

DeWine's executive order is the same structure applied to eligibility. Whether it produces the same result depends on how fast federal courts move, whether other governors follow DeWine's lead, and whether the NCAA's legal position holds at the appellate level — something it has, so far, been winning more often than losing in the Class of 2022 cases.

Legal analyst Mit Winter has called the suit potentially the NCAA's "last stand" on the eligibility question — an acknowledgment that if the courts don't resolve this in the NCAA's favor soon, the political and competitive pressure to simply grant the fifth year may become overwhelming.

What it means for brands and advisors

Any brand deal or endorsement arrangement built around a Class of 2022 athlete's return to college eligibility now has a new variable: whether the school is in Ohio, whether it relies on DeWine's executive order, and whether a federal court enjoins that order before the athlete plays a game. The uncertainty is real, and it's compounding. Eligibility-contingent deals need contingency language. Advisors working with returning athletes in this class should be watching the Southern District of Ohio closely over the next several weeks.

On October 14, a federal judge in Ohio ruled that Amazon must face trial on claims that its Merch on Demand print-on-demand service directly and vicariously infringed the copyrights of a small apparel company — and the reasoning is worth paying attention to if you're a creator whose work has ever shown up on someone else's product.

The plaintiff is Weekend Warrior Clothing, a two-brothers operation that sells humorous apparel under the "USA Drinking Team" brand — patriotic themes, drinking culture, holiday designs. The company alleges that third-party creators uploaded copies of its artwork to Amazon's Merch on Demand platform, producing approximately 560 accused product listings and more than 20,000 fulfilled orders between 2020 and 2025. Weekend Warrior sent takedown notices. The sales continued. They sued Amazon rather than chasing down the individual uploaders.

How Merch on Demand works — and why it matters legally

Merch on Demand lets creators upload artwork and select products. Amazon generates the listing, controls pricing and availability, manufactures items on order, ships them, collects payment, and pays the creator a royalty. Amazon handles everything except uploading the design.

That level of involvement is what the court found significant. Under the "volitional conduct" standard used in copyright cases, a platform generally escapes direct infringement liability when its role is purely passive — automated systems responding to user input, like a file-hosting service that stores whatever users upload. But when a platform actively participates in displaying, manufacturing, pricing, and selling the infringing product, the passive-platform defense weakens.

The judge found that Amazon's active role in the fulfillment chain was enough for a jury to find direct infringement — even though Amazon didn't upload the designs. The automation argument didn't save it: automated systems making business decisions are still the company making business decisions.

On vicarious infringement, the court's key line was blunt: "A reasonable jury could conclude that Amazon allowed the Notices of Claimed Infringement to fall into a vacuum and go unheeded." Vicarious infringement requires showing that the defendant had the right and ability to supervise the infringing activity and a direct financial interest in it. Amazon had both. It controls what gets listed and collected revenue on every sale. Receiving takedown notices and not acting on them is the kind of evidence that satisfies the "right and ability to supervise" element at trial.

The contributory infringement claim — which requires knowing inducement of infringement — was dismissed. That's a narrower theory and the hardest to prove against a large platform.

What this doesn't mean

The ruling isn't a verdict. A jury still has to decide whether Weekend Warrior's copyrights are valid (Amazon raised a genuine dispute about whether some designs incorporated preexisting material from beer brands and films), whether the accused products actually copied protected expression, and whether Amazon's conduct satisfies the legal standards for direct and vicarious liability. Courts deny summary judgment when there are genuine factual disputes — they're sending the case to a jury, not handing Weekend Warrior a check.

It also doesn't mean Merch on Demand is shutting down or that Amazon is suddenly exposed on every infringing product its third-party sellers put on the platform. The DMCA's safe harbor for online service providers remains in play for Amazon's broader marketplace. Merch on Demand's specific structure — where Amazon is the seller of record, not just a passive host — is what creates the additional exposure.

What creators should actually do

If you sell original designs and you've found copies on Merch on Demand, Redbubble, Zazzle, or similar platforms, the Weekend Warrior case is a useful data point — but your practical path starts before litigation.

First: register your copyrights. A registration gives you access to statutory damages (up to $150,000 per work for willful infringement) and attorney's fees if you win. Without registration, you're limited to actual damages, which in most cases are hard to prove and rarely worth suing over. Weekend Warrior is in court over 20,000+ orders — that's the kind of volume where actual damages are real. Most creators discover infringement at much smaller scale.

Second: use the platform's takedown process. Amazon, Redbubble, and others have infringement reporting systems. Document every notice you send and every response (or non-response) you receive. The "fell into a vacuum and went unheeded" language in the Weekend Warrior ruling is what takedown documentation builds toward if you ever need it.

Third: if the infringement is ongoing and the infringing seller is identified, the individual uploader is also a defendant — not just the platform. Amazon may be the deep pocket, but the person who uploaded your design without permission is directly liable. Platforms often identify uploaders in response to properly documented legal demands.

The Weekend Warrior case will go to trial. Whatever the jury decides, the threshold ruling confirms that print-on-demand platforms aren't categorically insulated from copyright liability just because a third party clicked "upload."

See you next time,

Hank

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About Hank's IP Brew

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