Hey legal guys, please weigh in on Darian Mensah

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SeaBee_Gopher

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Demond Williams was forced back to Washington because of his B1G contract. I have to imagine Duke's lawyers were smart enough to put together a solid contract too, right?

https://www.foxsports.com/stories/c...-qb-darian-mensah-transfer-portal-controversy

https://dukechronicle.com/article/d...z-lucas-heitner-contract-arbitration-20260121

I'm really interested in this part of the Duke Chronicle article:

"They could also refute Duke’s claims of “irreparable harm” given that damage liability would be capped at the amount Duke paid to Mensah according to the contract. In theory, since Mensah could be replaced on the field with another quarterback and monetary damages could be repaid, the actions don’t constitute “irreparable harm” to the University.

On the flip side, Duke could argue that because Mensah entered the portal at the last minute, he effectively precluded Duke from signing a replacement transfer. The Blue Devils’ backup quarterback, Henry Belin IV, transferred and committed to Missouri State a day before Mensah entered the portal."

Mensah entering the portal at the last second, reportedly on his way to conference rival, Miami, is a big time jerk move by both him and Miami in my opinion! And right after their backup QB transferred to Missouri State. Wow!!!

We could start seeing some stability in NIL if the conferences start to figure out how to enforce multi-year contracts, right? The B1G has apparently made progress.

I think I hate Miami and Oregon the most in the new NIL world.
 

SeaBee_Gopher said:
Demond Williams was forced back to Washington because of his B1G contract. I have to imagine Duke's lawyers were smart enough to put together a solid contract too, right?

https://www.foxsports.com/stories/c...-qb-darian-mensah-transfer-portal-controversy

https://dukechronicle.com/article/d...z-lucas-heitner-contract-arbitration-20260121

I'm really interested in this part of the Duke Chronicle article:

"They could also refute Duke’s claims of “irreparable harm” given that damage liability would be capped at the amount Duke paid to Mensah according to the contract. In theory, since Mensah could be replaced on the field with another quarterback and monetary damages could be repaid, the actions don’t constitute “irreparable harm” to the University.

On the flip side, Duke could argue that because Mensah entered the portal at the last minute, he effectively precluded Duke from signing a replacement transfer. The Blue Devils’ backup quarterback, Henry Belin IV, transferred and committed to Missouri State a day before Mensah entered the portal."

Mensah entering the portal at the last second, reportedly on his way to conference rival, Miami, is a big time jerk move by both him and Miami in my opinion! And right after their backup QB transferred to Missouri State. Wow!!!

We could start seeing some stability in NIL if the conferences start to figure out how to enforce multi-year contracts, right? The B1G has apparently made progress.

I think I hate Miami and Oregon the most in the new NIL world.
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Agree
 

the fascinating part in the statements is this to me

"will rule on Duke's request for relief that would prevent Mensah from enrolling at another school, playing at another school and licensing his name, image and likeness to another school,"

this type of thing would likely be a landmark ruling if so, from the standpoint of you are supposed to be paying for their NIL, not their right to play. However if the argument holds that their NIL is harmed by them playing at another school, I can see this being a landmark piece of legislation that let's schools start to restrict athletes, or at least stop them from breaking contracts as easily. There are numerous areas non-competes have been in place and have come under fire. They are legal (I believe) in North Carolina

at some point, a school is going to have to take this all the way to court and a place like Duke is probably a pretty reasonable place to try it as they have resources and aren't necessarily a place that's going to bend over backwards to try land 5 stars (like say GA who has to think about how it will harm future kids coming through if they take their legislation all the way to court).

The part that's additionally fascinating is this

"negotiate a license agreement for the rights that he has licensed to Duke."

If Duke owns exclusivity to his NIL rights, Mensah would have to reach agreement with Duke to get any NIL from Miami.

Think all of this comes pretty clearly as these kids really have no idea what they're signing in any amount of detail. I don't want to say I'm looking forward to the first one of these kids who completely gets fucked over, but its certainly coming and it will be quite the sight to see when a bunch of people start complaining like this isn't exactly what they asked for
 




#2Gopher said:
I think everyone on this board is a doctor and a lawyer based on the comments I've seen from everyone. No need to specifically ask for lawyers to comment.
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OP just asked the legal guys. That's all of us right?!
 

To me, this seems like a situation where the relief the Court can grant is likely limited to just monetary damages. In law school, you learn about "specific performance" of a contract and how in some circumstances, Courts can or can't grant specific performance.

For example, I sign a contract to purchase 10 eggs from a farmer, the Court could theoretically order the farmer to ship me 10 eggs if he fails to do so. Now where it gets tricky is ordering specific performance for services, such as the services an athlete provides. Once the relationship is severed, how on earth do you order specific performance? You can't force someone to play quarterback at a school they don't want to. I guess the Court could issue an injunction to stop the quarterback from playing at the other school? But that seems a little far fetched. Most likely would just be restrained to monetary damages.
 


HTexasGopher said:
To me, this seems like a situation where the relief the Court can grant is likely limited to just monetary damages. In law school, you learn about "specific performance" of a contract and how in some circumstances, Courts can or can't grant specific performance.

For example, I sign a contract to purchase 10 eggs from a farmer, the Court could theoretically order the farmer to ship me 10 eggs if he fails to do so. Now where it gets tricky is ordering specific performance for services, such as the services an athlete provides. Once the relationship is severed, how on earth do you order specific performance? You can't force someone to play quarterback at a school they don't want to. I guess the Court could issue an injunction to stop the quarterback from playing at the other school? But that seems a little far fetched. Most likely would just be restrained to monetary damages.
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Specific performance is almost never appropriate for a personal services contract. It usually only makes sense for things like real estate transactions or purchases of art. Courts, generally, are asked to put a monetary value everything (think like wrongful death, bodily harm), so they tend to roll their eyes at the notion that you can't put a dollar value of a contractual relationship.
 






HTexasGopher said:
To me, this seems like a situation where the relief the Court can grant is likely limited to just monetary damages. In law school, you learn about "specific performance" of a contract and how in some circumstances, Courts can or can't grant specific performance.

For example, I sign a contract to purchase 10 eggs from a farmer, the Court could theoretically order the farmer to ship me 10 eggs if he fails to do so. Now where it gets tricky is ordering specific performance for services, such as the services an athlete provides. Once the relationship is severed, how on earth do you order specific performance? You can't force someone to play quarterback at a school they don't want to. I guess the Court could issue an injunction to stop the quarterback from playing at the other school? But that seems a little far fetched. Most likely would just be restrained to monetary damages.
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How would this differ from nfl or other pro contracts? Genuinely curious, as what you laid out makes sense until I think about pro athletes. I'm finding it hard to find a difference between major college sports and pro leagues at this point.
 



upnorthkid said:
the fascinating part in the statements is this to me

"will rule on Duke's request for relief that would prevent Mensah from enrolling at another school, playing at another school and licensing his name, image and likeness to another school,"

this type of thing would likely be a landmark ruling if so, from the standpoint of you are supposed to be paying for their NIL, not their right to play. However if the argument holds that their NIL is harmed by them playing at another school, I can see this being a landmark piece of legislation that let's schools start to restrict athletes, or at least stop them from breaking contracts as easily. There are numerous areas non-competes have been in place and have come under fire. They are legal (I believe) in North Carolina

at some point, a school is going to have to take this all the way to court and a place like Duke is probably a pretty reasonable place to try it as they have resources and aren't necessarily a place that's going to bend over backwards to try land 5 stars (like say GA who has to think about how it will harm future kids coming through if they take their legislation all the way to court).

The part that's additionally fascinating is this

"negotiate a license agreement for the rights that he has licensed to Duke."

If Duke owns exclusivity to his NIL rights, Mensah would have to reach agreement with Duke to get any NIL from Miami.

Think all of this comes pretty clearly as these kids really have no idea what they're signing in any amount of detail. I don't want to say I'm looking forward to the first one of these kids who completely gets fucked over, but its certainly coming and it will be quite the sight to see when a bunch of people start complaining like this isn't exactly what they asked for
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I do find it interesting that at some point all the lawyering may lawyer themselves into the exact opposite of what their goal is
 

gopherintx said:
How would this differ from nfl or other pro contracts? Genuinely curious, as what you laid out makes sense until I think about pro athletes. I'm finding it hard to find a difference between major college sports and pro leagues at this point.
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Well I think the lines are blurring which everyone saw coming when NIL became a thing. It used to matter because there was a guise that these were students first and athletes second. That’s what made it different. Now it is a lot more similar.
 

HTexasGopher said:
Well I think the lines are blurring which everyone saw coming when NIL became a thing. It used to matter because there was a guise that these were students first and athletes second. That’s what made it different. Now it is a lot more similar.
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Legally, does that affect your earlier statement?
 


gopherintx said:
How would this differ from nfl or other pro contracts? Genuinely curious, as what you laid out makes sense until I think about pro athletes. I'm finding it hard to find a difference between major college sports and pro leagues at this point.
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Collective bargaining agreement in pro sports, none in college sports. It makes a world of difference.
 


Let's say Duke somehow forces him to stay...good luck coaching him and getting elite performance out of him.
Just take the high road, cut bait and move on. Find another QB and get better contracts and better explain what the player is signing and can and cannot do. If he's a guy who's character you want in your program and he understands the terms...I don't think this happens.
Like the Washington QB...these guys don't know what they signed. That's on the programs...Duke in this case.
 

An observation: the amount of litigation in college athletics will likely create a patchwork of inconsistent results. This may create the momentum necessary for Congressional legislation for NIL; transfer portal etc.
 


60's Guy said:
Let's say Duke somehow forces him to stay...good luck coaching him and getting elite performance out of him.
Just take the high road, cut bait and move on. Find another QB and get better contracts and better explain what the player is signing and can and cannot do. If he's a guy who's character you want in your program and he understands the terms...I don't think this happens.
Like the Washington QB...these guys don't know what they signed. That's on the programs...Duke in this case.
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lol what? In what world would it be on the program that you didn't read your contract and decide to ask questions about what you can and cannot do? If you want to blame whoever Mensah's agent is, fine. I don't get why the thing should be the players should get to have it both ways. Not like I can violate my signed contract and expect my org to take no recourse even if I claim I didn't know what I signed. Both parties have some fault in how they're doing this, but this is the fucked up environment everyone was clamoring for and I don't see how we just decide one side is the one at fault and there's no blame on the other side

Think this analysis has it pretty apt
Duke v. Mensah could lead to more serious discussions about college athlete employment and unionization. If Mensah were an employee of Duke and signed a multiyear employment contract with the school, he would not be able to transfer. Instead, in the current environment, there is a murkier relationship between the two where while he is ostensibly being paid for NIL, the school wants him to stay as a student to play football—much like an NFL team doesn’t want to lose its star QB, except that QB is an employee and union member.
 

60's Guy said:
Let's say Duke somehow forces him to stay...good luck coaching him and getting elite performance out of him.
Just take the high road, cut bait and move on. Find another QB and get better contracts and better explain what the player is signing and can and cannot do. If he's a guy who's character you want in your program and he understands the terms...I don't think this happens.
Like the Washington QB...these guys don't know what they signed. That's on the programs...Duke in this case.
Click to expand...

If I was Duke, my goal would be to recoup some form of compensation or damages from the player or new team as the late movement hampered their ability to attract a replacement QB. In no way would he be on the roster next August.
 



Answer: first distinguish between personal labor and monetary enticements.

1. The 13th Amendment to the Constitution forbids enforced peonage. No court will force a person to work or labor when the person doesn't want to. Period ... with the exception of forced labor in prisons, and folks in essential industries who can be forced by the federal government to work rather than go on strike.

2. When a person signs a contract promising to work and then breaks that contract to work at a competitor, a court may, by injunction--and depending on the terms of the contract (non-compete clause)--forbid that person from working at the new place during the term of the broken contract. The court cannot force the person to work at the original job, but it can forbid him/her from working in competition at the new place.

3. Since NIL contracts are essentially passive royalty payment contracts, not employment contracts (though they might require personal appearances, endorsements, etc.), they cannot be "pay for play" contracts (an NCAA rule). Thus, it is unlikely that an NIL contract would contain a "non-compete" clause like one might see in a typical employment contract.

4. An NIL contract would, however, normally contain an "exclusivity" clause. This is simply a monetary device. The purchaser of the NIL rights would have the exclusive commercial right to the player's NIL assets for the term of the contract, assuming the contractual payments were paid timely and in full. This would mean that if booster no. 1 had purchased an exclusive commercial right to a player's NIL assets for a year, the player could not then re-sell his same NIL assets to a different booster. Because this has nothing to do with forced labor, a court would normally enforce that exclusivity right, by injunction and/or damages.

5. If booster no. 2 was aware of the existing NIL contract with booster no. 1, and nonetheless took steps to entice the player to dishonor the existing NIL contract and sign a new NIL contact with booster no. 2, then booster no. 1 would have grounds for a tort claim against booster no. 2 for "intentional interference with contractual relations" and/or "intentional interference with prospective business advantage." Tort claims normally are for monetary damages, which must be proven (might be tough for NIL contracts that are themselves fairly bogus in terms of demonstrable commercial value expected to be derived by the NIL rights buyer). A court might put on its "equity" hat and enjoin the booster no. 2 from entering into an NIL contract with the player, but there are some proof hurdles including a difficult showing of irreparable harm.

6. All of the above analysis is muddled further to the extent the player, in addition to an NIL contract with a booster, has signed a contract with the University to be compensated (presumably as an independent contractor, not employee) for playing football at the University. This would be a form of revenue sharing contract, permitted by the House lawsuit settlement, that most major universities (including the Gophers) are using to directly compensate players--i.e. "pay for play." If a player signs a "pay for play" revenue sharing contract with a University, the University could never force the player to play (13th Amendment) but could probably, during the term of that contract, enjoin the player from playing for another team that was a "competitor."

I could go on, but you get the point. This is complicated, muddled and disjointed area of law because the NIL contracts with boosters and the revenue sharing contracts with Universities have fundamentally different approaches that in some ways conflict, and there are no consistent, enforceable, national statutes or regulations to bring order to the situation. This is why pro sports have long ago moved to complicated and comprehensive collective bargaining agreements: to lift matters out of the legal morass.

The Duke/Miami dispute is therefore, I believe, likely to be settled with an agreed payment from Miami to Duke and/or the Duke booster who holds the original NIL rights--simply because Miami has the money to get such a settlement done. If Miami doesn't have the resources or gumption to craft and fund such a settlement, the QB might return to Duke voluntarily, without court compulsion, because of the threat that (1) he might be judicially enjoined form playing for Miami and (2) might not be able to collect NIL from Miami boosters. And he, or somebody on his behalf, would have to spend a lot of legal fees to find out.
 
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Update: Court in NC has ruled that Mensah can enter transfer portal but cannot play for Miami. Mensah's NIL contract was apparently picked up directly by Duke after the House settlement. Court won't force Mensah to play for Duke, but has forbidden him to play for Miami. This poor kid probably has no idea of the legal morass that some greedy folks have dropped him into. I still predict that Miami pays Duke a lot of money, Duke releases its contractual claims, and the kid plays for Miami. Many months to get that deal done (once Duke finds a new QB for itself).

www.nytimes.com

Duke’s Darian Mensah can enter transfer portal but can’t play elsewhere, judge’s order says

Entry into the portal would allow schools to officially contact Mensah. Miami was considered the favorite to land him.
www.nytimes.com www.nytimes.com
 


Gophergrandpa said:
Update: Court in NC has ruled that Mensah can enter transfer portal but cannot play for Miami. Mensah's NIL contract was apparently picked up directly by Duke after the House settlement. Court won't force Mensah to play for Duke, but has forbidden him to play for Miami. This poor kid probably has no idea of the legal morass that some greedy folks have dropped him into. I still predict that Miami pays Duke a lot of money, Duke releases its contractual claims, and the kid plays for Miami. Many months to get that deal done (once Duke finds a new QB for itself).

www.nytimes.com

Duke’s Darian Mensah can enter transfer portal but can’t play elsewhere, judge’s order says

Entry into the portal would allow schools to officially contact Mensah. Miami was considered the favorite to land him.
www.nytimes.com www.nytimes.com
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I believe the court ruled that he cannot play/enroll anywhere else until Duke's request for an injunction. It's not specific to Miami and the judge did not rule on the merits, he just laid out the procedural next steps.
 

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