What’s in a name (signed on a trading card)?

Earlier this week, news broke that Dallas Cowboys quarterback Dak Prescott may have signed a collection of Panini football cards using an autopen, rather than his own hand. Beckett, the respected memorabilia company charged with authenticating the Prescott cards, ignited the story when it refused to certify the signatures as genuine. Shortly thereafter, Panini recalled some of the cards that were already “in transit.” It is unclear whether Panini has recalled all of the cards or whether it will replace them with cards signed by Prescott himself (though it did handle a similar incident in May by replacing the cards).

Some have suggested that this minor fiasco amounted to fraud. The conclusion holds some logic, as Panini and Prescott may have used the promise of genuine signatures to dupe collectors into purchasing something less. But from a legal standpoint, the hurdles are plentiful.

Under Texas law, to establish fraud, a plaintiff must demonstrate six elements: (1) the defendant made a material representation; (2) the representation was false; (3) the defendant knew the representation was false or acted with reckless disregard for the representation’s accuracy; (4) the defendant intended for the plaintiff to act on the representation; (5) the plaintiff did act on the representation; and (6) the plaintiff suffered damages as a result.

In Prescott’s case, these elements would be secondary to a more basic issue: Who committed the fraud? It could have been Panini, which represented to customers that Prescott’s cards contained an authentic signature. It also could have been Prescott, who represented that his signature was authentic. Or it could have been both. That is, the customer may have a fraud claim against Panini for representing that the card’s signature was authentic, and in turn, Panini could have a third-party claim against Prescott, who told the company that his autopen signature was the real deal. So this threshold issue could fall in a few different directions.

Regardless, it is not clear that either party committed a fraud. This analysis could get technical and lawyerly. First, one would have to identify the supposedly false representation. In its official press release, Panini promised customers who purchased its Prizm Football Card Set (the set containing the Prescott autograph) “Chase iconic Rookie autographs from the best up-and-coming stars of the NFL.” Was this representation false? It is probably safe to assume an Dak Prescott’s “autograph” means his actual autograph. So had Prescott’s agent, for example, signed the cards, Panini’s representation would be false. But by all accounts, that is not what happened. Rather, Prescott used an autopen, which produces the user’s actual signature. Therefore, in a sense, Prescott’s “autograph” was on his cards. Then again, the sports memorabilia industry may have its own understanding of an “autograph” or at least a genuine autograph. And if that standard requires an “autograph” to be a writing from the signer’s own hand, Panini’s statement would be false.

Nonetheless, even if false, the representation may not be knowingly false. The signature on the cards matches Prescott’s actual signature. Given that Panini is not a company of handwriting experts, it would have been reasonable for it to conclude that the signature was authentic. In fact, Panini went a step further. It sent the cards to Beckett for confirmation. As such, any false statement Panini made was probably not knowingly false or made with reckless disregard for its accuracy.

As for Prescott, his representations to Panini are not public. So it is unclear whether he told the company anything false. But even if he did, the “knowing” issue could block any fraud claim against him. Prescott could have believed that an autopen signature was a real autograph. And as there is no real difference between the signature on the questionable cards and his genuine signature, this belief does not seem unreasonable. After all, the problem was not with the signatures themselves, but the method used to write them. Thus, while it could be a close issue, Prescott may not have made any knowingly false statements.

The final issue would be damages. Here, eventually, the customers will probably get what they paid for: football cards that Dak Prescott himself signed. As such, the customers would have trouble establishing that they suffered damages. If Panini refuses to replace the cards, the calculus changes, as, arguably, the customers would have paid the company for a lower value product than they thought they were buying. But even in this scenario, any damages suffered would be minor. So while they could support a fraud claim, the upside may be too small to justify pursuing.

Panini, on the other hand, would have a better claim to have suffered damages from Prescott’s actions. That is because, even if his actions did not lead to a direct loss of money, the ordeal could have damaged Panini’s prestige in the industry. And though difficult to calculate, this can have a financial impact.

At bottom, a fraud claim against Panini or Prescott is unlikely. It is not clear that either’s actions constitute a fraud. And even if they did, the limited upside would probably deter any would-be plaintiffs.

Random Observations Unleashed

1. Depending on the specifics of Prescott’s agreement to sign the cards, Panini could have a breach of contract claim against him. Prescott could have agreed to sign cards a certain way and breached that agreement by signing a different way.
2. Apparently, one feature of an autopen signature is that the pressure on page is even throughout. When a person uses his or her own hand to sign, the pressure varies.
3. Earlier this year, Panini also had to recall cards featuring signatures from Atlanta Falcons first round draft pick Takkarist McKinley. According to Panini, some of the cards were “not signed by McKinley.” Beckett reported that, after shoulder surgery on his writing arm, McKinley had someone else sign for him.