Hey legal guys, please weigh in on Darian Mensah

[Eastside Forever]

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 made 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 commercial exploitation 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. This is why pro sports have long ago move to complicated and comprehensive collective bargaining agreements: to lift matters out of the statutory and common law 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 didn't have the resources to fund such a settlement, the QB might return to Duke voluntarily, without court compulsion, because of the threat that he (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.

Excellent analysis Counselor! Thank you.

 

[Scottsdale Gopher]

A few details that I find interesting:

• DeMond Williams' contract with UW was reportedly the B1G boilerplate agreement.
• Williams' agent got wind of his visit to LSU and dropped him as a client.
• Darian Mensah's contract with Duke seems to be a Duke-specific contract, not a boilerplate agreement provided by the ACC
• It does not appear any of Mensah's team have dropped him as a client

I'm curious as to whether any of the above is related or all just a coincidence.

 

[SeaBee_Gopher]

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).

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

Thanks, Gophergrandpa! Very interesting details. You helped me make some sense out of the morass!

I wonder if Miami is not too worried about the financial implications of the mess they've helped create because they get to keep just about ALL of the money they earned being in the CFP. Adding another $20 million+ to their already high NIL and pay-for-play puts them in a position that maybe no other team is in. The ACC gave up pretty much everything to keep them around and they went right back and hosed another ACC team to show their appreciation. I don't feel sorry for any of them. They are all just playing the gray area until they finally agree to clear it up!

https://www.usatoday.com/story/spor...all-cfp-payout-performance-bonus/88187528007/

 

[60's Guy]

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.

Not saying the player is not at fault. If I am Duke I don't want this guy in my program going forward. We will fight for compensation.
What am saying...if I'm the AD to my coaches, GM...whoever handles signings...we gotta do a better job of explaining to players the terms of what they are agreeing to so these situations don't happen.

 

[upnorthkid]

Not saying the player is not at fault. If I am Duke I don't want this guy in my program going forward. We will fight for compensation.
What am saying...if I'm the AD to my coaches, GM...whoever handles signings...we gotta do a better job of explaining to players the terms of what they are agreeing to so these situations don't happen.

gotcha gotcha. that makes perfect sense. agree this whole thing is a mess, as is all of NCAA sports right now because of NIL

 

[Gophergrandpa]

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.

Yes, the court did say the kid can’t play at any school (except Duke) for now, pending a decision on a permanent injunction. I made it specific to Miami (for non-lawyers) simply because that’s the only other realistic alternative at this time. But as you no doubt know, in order to get a TRO pending a future ruling on a permanent injunction, the movant (here, Duke) must show irreparable harm if the status quo is upset AND must show that it has the greater likelihood of prevailing on the permanent injunction ruling. Since Duke met both of these requirements (in the eyes of the court), I’m placing my bets on Duke as the hearings progress … unless Miami opens its checkbook and buys a release of claims from Duke.

 

[Gophergrandpa]

Thanks, Gophergrandpa! Very interesting details. You helped me make some sense out of the morass!

I wonder if Miami is not too worried about the financial implications of the mess they've helped create because they get to keep just about ALL of the money they earned being in the CFP. Adding another $20 million+ to their already high NIL and pay-for-play puts them in a position that maybe no other team is in. The ACC gave up pretty much everything to keep them around and they went right back and hosed another ACC team to show their appreciation. I don't feel sorry for any of them. They are all just playing the gray area until they finally agree to clear it up!

https://www.usatoday.com/story/spor...all-cfp-payout-performance-bonus/88187528007/

Miami is one of the few teams with the resources and inclination to jump into such a tortuous and expensive contest. To retain its relevance, it needs a top-flight QB next year, as it doesn’t have one on its roster. And there aren’t many (any?) uncommitted top-flight QB options laying around right now. This IMHO is the trap a school can get into once it decides to go into the marketplace and bid for a highly experienced and productive QB each year or two (instead of developing). Fun soap opera to watch. I’m glad we’ve secured Drake for next year.

 

[MNVCGUY]

gotcha gotcha. that makes perfect sense. agree this whole thing is a mess, as is all of NCAA sports right now because of NIL

Have said before and will say again NIL as intended is a great thing for college athletes.

What has been called NIL in basketball and football is something entirely different and has led to these ridiculous situations.

 

[Some guy]

Have said before and will say again NIL as intended is a great thing for college athletes.

What has been called NIL in basketball and football is something entirely different and has led to these ridiculous situations.

Economically I kind of disagree

If I want to pay a dude 2 million dollars to endorse my car dealership

That’s kind of my deal



In no other Market do we make things that have a negative ROI illegal






I agree it’s stupid though

 

[MNVCGUY]

Economically I kind of disagree

If I want to pay a dude 2 million dollars to endorse my car dealership

That’s kind of my deal



In no other Market do we make things that have a negative ROI illegal






I agree it’s stupid though

I mean it was predictable as hell that the big money sports were going to bastardize the system as soon as it was put in place.

 

[upnorthkid]

Economically I kind of disagree

If I want to pay a dude 2 million dollars to endorse my car dealership

That’s kind of my deal



In no other Market do we make things that have a negative ROI illegal






I agree it’s stupid though

If they were actually doing that, I’d agree. No one is paying these kids to endorse their auto shop. They’re paying them to play football for their favorite university.

 

[BilldGopher]

Now, I’m no big city lawyer but I’ll say this is a classic tort situation. Really basic stuff that I won’t go in depth on at all.

Beyond that, I have no form[al] education and am barely literate. So take this for what it’s worth. Which is gold.

 

[MNVCGUY]

If they were actually doing that, I’d agree. No one is paying these kids to endorse their auto shop. They’re paying them to play football for their favorite university.

Yep, NIL provides the cover for blatant pay for play deals and makes it really hard to enforce. Shame to see the system abused this way but not surprising to see it happen in any way shape or form.