Texas A&M Moves to Dismiss '12th Man' Copyright Suit

Texas A&M University has urged a Texas federal court to dismiss claims that the school's athletics department stole copyrighted material from the author of a book on the football team’s "12th Man" tradition, saying the athletics department has no separate existence from the state-run university and is thus entitled to sovereign immunity.

“Plaintiffs are not entitled to pick off one department of a state agency and claim to proceed against only that department,” H. Melissa Mather of the Texas attorney general’s office wrote on behalf of the athletic department in a letter to the court filed Friday.

As reported by law360.com, author Michael Bynum and his publisher, Epic Sports, sued Texas A&M’s athletic department, three of its information and media administrators, the athletics booster organization and the Texas A&M University 12th Man Foundation in 2016 after the department posted a biography on E. King Gill — the individual who started the 12th Man tradition at the university — commissioned by Bynum as an opener for a book he was writing. The 12th Man, a slogan emblazoned on the school’s football stadium, identifies the team’s fan base as the team's 12th member.

Bynum has argued that the athletics department is a self-sustaining business and takes no state funds, and therefore is not subject to the protection. The department, however, has no separate corporate existence, Mather wrote, and as such cannot be a party to the lawsuit. It would have to be substituted with the university itself, which has sovereign immunity.

Mather added that the Texas attorney general’s office would likewise move to dismiss such a claim in state court, where the issue must be decided before Bynum can even pursue Texas A&M or its employees in federal court.

Tim Johnson of Locke Lord LLP, representing Bynum, said they feel the law is in their favor and that the motion to dismiss will be denied.