After Losing MLB License, Topps Should Pivot To College Sports Trading Cards
Founded as a chewing gum company in 1938, Topps has been synonymous with baseball trading cards since the 1950s. As recently as last month, Topps was planning to go public with an exciting $1.3 billion SPAC merger with Mudrick Capital. However, last week, both Major League Baseball and the MLBPA declined to extend their licensing deals with Topps — thus placing the company’s long-term future in peril.
The last time Major League Baseball players handed the exclusive rights to their names, images, and likenesses to a company other than Topps came in 1953 when a chewing gum competitor, Haelan Laboratories, locked up many current players to exclusive licensing deals. Rather than face the prospect of needing to stop selling baseball cards, Topps decided to sign contracts with the same big-league players who had already signed contracts with Haelan — setting up a famous lawsuit between Topps and Haelan, which ultimately gave birth to modern publicity-right law.
This time around, Topps cannot easily continue to sell baseball cards without a license because they would almost certainly be found to have tortiously interfered with the players’ assignment of their publicity rights. Yet, there is perhaps another avenue that Topps could still turn to save its trading card business — moving into the domain of college sports trading cards.
Much like Major League Baseball players in the 1950s, NCAA athletes today are not unionized, and there is no single organization for college athletes to allocate their likeness rights for the purposes of group licensing. Nevertheless, with a number of state laws that went into effect on July 1, 2021 ensuring college athletes the rights to license their names, images and likenesses, Topps can still reasonably seek to secure these rights from college athletes by targeting them one-by-one — much as they did with MLB players prior to the players union’s founding in 1966.
While pivoting to selling college athlete trading cards would be far more time consuming from a licensing perspective than simply negotiating with league-wide players associations, such a market seems both large and untapped. And, without an established licensing arm on behalf of the players, it is unlikely Topps would be frozen out of this market in the totality, much as they have likely been frozen out of the baseball player trading card market.
Nevertheless, for the leadership team at Topps, time seems to be of the essence. Sports apparel company Fanatics, which recently inked an exclusive deal to make MLB trading cards beginning in 2026, seems poised to try to take over the trading cards marketplace in its entirety. Thus, it is reasonable to presume that Fanatics, much like Topps, could reasonably enter the college trading cards market if it manages to be first to secure star college athletes to exclusive licensing deals.
Thus, much like the 1953 battle between Topps and Haelan to sign baseball players to trading card deals, a reasonable battle may soon ensue between a number of companies to sign elite college athletes to trading card deals. However, unlike in 1953, the growth and formalization of publicity rights law makes it nearly certain that whatever company is first to secure the exclusive rights to college athletes’ likenesses for trading cards will become to dominant company in this marketplace for a reasonable period of time.
Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law” and “The Future of College Athlete Players Unions.”