Tennis Players Causing a 'Racket'? Darren Rovell of ESPN.com has an interesting piece describing a common practice among star tennis players: using older, discontinued rackets but painting them to resemble the newer models the player endorses. Players do this for obvious reasons: they feel comfortable with the type of racket they have used for years and cannot change every time the technology does. But is there a possible claim for false advertising?



Since the US Open is going on, let's look at New York law. New York General Business Law sec. 350 declares that false advertising is unlawful. The statute defines "false advertising" as advertising that is "misleading," including "representations made by statement, word, design, device, sound or any combination thereof" and also to the extent that the advertisement "fails to reveal facts material in the light of such representations."



A claim for false advertising in New York can be pursued via three avenues. One, the state Attorney General can bring a claim on behalf of the state. Second, a company can be brought up on criminal charges under the state's penal law. Finally, a consumer that has suffered damages as a result of the false advertising can bring a civil suit. The most likely scenario is a group of tennis racket purchasers that felt aggrieved filing a class action suit against the tennis racket manufacturers, since they know of this practice and allow it to continue.



There seems to be a number of hurdles to this possibility, however. First, the consumers must prove that they were damaged by the false advertising. At first glance, damages are not apparent. Even if the purchasers were aspiring professionals who believed they were getting the same technology used by the best players, the advertisements would not be that misleading. The professionals do still use the rackets of that particular manufacturer, just not a certain model. Michael Jordan and Mia Hamm endorse Nike, but only use certain products. Since the technology moves faster than the advertising, this is to be expected.



The real problem may lie in players using discontinued products, or stated another way, products not available for sale to the general public. In 2000, a consumer watchdog group sued Nike Golf after its top endorser Tiger Woods admitted that the golf ball he uses wasn't available to the public. In the wake of the suit, Nike quickly introduced the Tiger ball to the market. A group of ambitious lawyers could perhaps make this same argument in regards to the tennis rackets. This could be seen as a "material fact" that the company failed to reveal after making a representation that the athlete uses the most recent product.



Overall, this seems to be a weak legal argument. On a policy level, an adverse decision would wreak havoc on businesses that advertise. Endorsement contracts would have to specifically mandate that the athlete or performer use a specific product, and not just any product made by a manufacturer. Advertisements would have to change with the technology, which does not seem to be possible. So, while an interesting story, there does not seem to be any claim for false advertising, no matter how much painting and transformation occurs.

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