What's next for the Giants and Eli Manning amidst memorabilia scandal?

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Friday April 14th, 2017

Do you own or have you bought for someone else an authentic Eli Manning “game-used” jersey or helmet?

If you have, you might want to see if your receipt still lets you return it.

As first reported by New York Post writers Kaja Whitehouse and Bruce Golding, new court papers contain copies of emails allegedly sent by Manning seven years ago that suggest the Super Bowl XLII and Super Bowl XLVI Most Valuable Player intentionally misrepresented the authenticity of equipment he provided Steiner Sports Memorabilia as part of a deal he had with the company. Steiner Sports offers a wide selection of memorabilia to consumers and guarantees the authenticity of items it sells.

Assuming the accuracy of the court papers filed, a then 29-year-old Manning emailed Giants equipment manager Joseph Skiba on Apr. 27, 2010 with a simple request: provide Manning with “two helmets that can pass as game-used.” Manning made the request at the behest of his marketing agent, Alan Zucker, who had been contacted by Steiner Sports about its desire for two “game-used” helmets and jerseys. A few days later, Skiba appeared to admit in an email to sports collector Eric Inselberg that the “game-used” jersey and helmet he distributed were “bs” since Manning didn’t want to share actual game-used jerseys.

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The integrity of football jerseys has both economic and legal significance

On the surface, whether equipment attributed to Manning was actually “game-used” or merely scuffed up to appear as game-used might not seem like a big deal. After all, the equipment is fundamentally the same whether it was used in a game or not.

But that thinking ignores the importance of memorabilia categorization and the damage that can be done to a collector’s reputation if he or she is viewed as selling fraudulent goods.

In the sports memorabilia world, a “game-used” or “game-worn” jersey means something altogether different from a “game-issued” jersey or an “authentic” jersey, and it has a greater value, too. A game-used or game-worn jersey is a jersey that was worn in an actual game. Such a jersey can have considerable value if worn by a star player in a key game. The recent controversy involving Tom Brady’s stolen Super Bowl jerseys evidences that point: some collectors estimate that the Brady Super Bowl jerseys are worth over $500,000. This is because they were actually worn by Brady in his Super Bowl victories, which makes them unique, scarce and historic. A “game-issued” jersey is identical to a game-used jersey and was capable of being worn by a player in a game. It is different, however, because it wasn’t actually worn by the player in that game, and thus has less historic value. As to an “authentic” jersey, it is one that consumers can buy in stores, and is often signed by the player. A framed Eli Manning signed jersey can be bought for around $1,000 on steinersports.com.

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Manning’s apparent admission has been made public as part of a lawsuit that began in 2015 and continues to this day. A group of collectors led by Inselberg sued Manning, Giants owner John Mara, Steiner Sports and others in a New Jersey Superior Court. The plaintiffs, who are represented by attorney Brian Brook of Clinton Brook & Peed, contend that Manning was part of a racketeering scheme to distribute and sell fraudulent memorabilia. The alleged fraud reflects inauthentic equipment being marketed under false pretenses. Racketeering is a serious allegation. It requires proof that two or more persons conspired to commit an unlawful act as a method of obtaining illegally derived income. Whether such proof can be proven in this case remains to be seen.

The plaintiffs also insist that Manning and his co-defendants engaged in malicious prosecution. The Giants did so, Inselberg asserts, by implicating Inselberg in wrongful activity when the FBI investigated Inselberg and others for memorabilia fraud in 2010. This is also a serious allegation since a grand jury would indict Inselberg on four counts mail fraud in 2012. Federal prosecutors, however, dismissed the case a year later. Inselberg insists that the defendants pinned the blame for fake memorabilia on Inselberg in order to escape their own criminal prosecution for distributing fraudulent items.

The lawsuit contains still other claims, including that the defendants allegedly libeled Inselberg as a peddler of false goods. Further, the Inselberg insists, the defendants interfered with Inselberg’s capacity to do business by—in Inselberg’s view—falsely implicating him in wrongdoing. In essence, Inselberg reasons, if he is viewed as selling fake goods no one will buy from him.

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This is a civil, not criminal, controversy

To be clear, although the allegations in Inselberg’s lawsuit portray Manning and his Giants co-defendants as having committed criminal acts, none were charged with any crimes. There is also no known evidence that they were investigated for criminal conduct.

In addition, the defendants almost certainly won’t be charged with crimes over this memorabilia controversy going forward. For one, if they were going to be charged, they likely would have already been charged: the FBI investigated this matter years ago. Second, the relevant statute of limitations for plausibly related criminal charges have likely expired by this point. In New Jersey and New York, for example, most crimes must be charged within five years or six years, respectively, or they are time-barred. The same is generally true for the kinds of federal charges that would be in play in this type of situation.

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The Giants respond. How might the NFL respond post-Deflategate?

The Giants tweeted a response Thursday night with a quote attributed to a spokesperson for the team’s attorney: “The email, taken out of context, was shared with the media by an unscrupulous memorabilia dealer and his counsel who for years has been seeking to leverage a big payday . . . Eli Manning is well known for his integrity and this is just the latest misguided attempt to defame his character.”

It remains to be seen if the defendants provide other materials that might add meaningful context. Such context could exculpate Manning or at least mitigate the reputational impact of his email to Skiba.

It is a little surprising, however, that Manning would not have settled the lawsuit before disclosing his email in pretrial discovery. Put simply, the email—at least as it is portrayed in the court filing—makes Manning seem dishonest. Along those lines, even if Manning ultimately defeats Inselberg in court, it could prove to be a pyrrhic victory.

For one, Manning’s reputation is damaged by even an insinuation that he would let consumers—and presumably his fans—buy misrepresented memorabilia that is associated with his name. Steiner Sports is in the business of selling memorabilia, including to consumers. There’s a good chance that a consumer interested in buying a Manning game jersey is one of his fans or has a child who is a fan.

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Second, the NFL is surely following the story with keen interest. Depending on subsequent developments, the league and commissioner Roger Goodell could take action against both Manning and the Giants. As we know, the NFL waged a long legal battle against Tom Brady over the integrity of football equipment and the league severely punished the Patriots, too.

The NFL could distinguish Deflategate from what might be called “Memorabiliagate” on grounds that the league’s claims against Brady and the Patriots were raised because air pressure in game footballs impacts competition in games whereas Manning and the Giants’ alleged equipment misconduct had no impact on competition in games. Setting aside the fact that many neutral scientists, including MIT Professor John Leonard, contend the NFL’s claims in Deflategate were scientifically implausible, one might question the persuasiveness of such a distinction. After all, whether consumers have confidence that they are buying accurately marketed official NFL products goes directly to the integrity of the league.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.

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