Hey legal guys, please weigh in on Darian Mensah

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Pompous Elitist said:
TRO until a non-biased court hearing. Original judge recused himself as a Duke booster. We’ll see what happens. What damages would you suggest are appropriate if an employee jumps ship? That is generally defined in a contract. Wasn’t here. “Irreparable harm” to a wealthy institution like Duke with dozens and hundreds of replacement players at the ready to publicize the school just as well - appear at fan engagement activities, give interviews and represent the school in games - seems histrionic.

Right?
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Correct about a TRO, which is temporary, essentially, emergency relief. All a TRO does is stop the supposed bad guys from taking further action in derogation of the petitioner’s (Duke’s) alleged rights until there can be a hearing on a preliminary injunction, with full briefing and argument. So, Mensah and Miami are currently being held in suspension awaiting a further decision from the court on a permanent injunction. That is the full extent of “enforcement” at this stage of the proceeding.

Even if Duke gets a permanent injunction (which keeps the “status quo” in place during the upcoming litigation), there won’t be a decision on the actual merits until a trial or, more likely, a pre-trial summary judgement motion. Because the creaky wheels of justice grind slowly and expensively, IMHO this matter will be settled by the parties, through negotiation, probably soon after a decision is made on the preliminary injunction (which often presages the ultimate outcome on the “merits” of the case). Despite the TRO being granted, it isn’t a sure thing that Duke actually gets a preliminary injunction. To get “equitable” relief (an injunction instead of just some $$), Duke will have to show irreparable harm—which might be quite tough given the phony commercial value of NIL contracts, and the ready availability of QBs in the portal and from HS recruiting. The fat lady hasn’t sung yet.
 

GopherGrit said:
As I said, how is it possible under current law to allow employment ... just for P4 football and basketball players, but not any other players in any other situation under the NCAA??

And if you make that happen ... minimum 95% of NCAA varsity athletics departments close shop. They can't afford and/or will refuse to pay wages and benefits to student-athletes.


@Pompous Elitist at least have the honesty to acknowledge this rock and hard place. You won't have any answers on how to solve it, no one does.
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Pretty sure they can collectively bargain the deal with whoever they want to, the same as the players can decide to or not. So it would like be schools that opted into the house settlement collective bargaining with a group of athletes. Schools can say we’ll only sign you if you’re in the CBA. Players can choose not to. No mobility restriction as playing sports is a privilege not a right and they have reasonable alternatives without a restricted market/monopoly. You can keep non revenues/olympics outside of the CBA and thus revenue sharing as they currently are

The schools don’t want this as it makes the players employees with rights and protections, and that’s the far bigger hang up than the sweet spot many have now taking your (spoken generally, not specific to you) money to foot the costs to pay Jonny to come here and catch or throw a ball
 

Bob_Loblaw said:
It's hard to imagine how it looks but maybe the conferences?
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But then who goes first? Like, why would the B1G athletes want to lock themselves into "restrictions" while the SEC sits idle and lets their athletes continue with unlimited restrictions? And what would the motivation be for the SEC to try, now that they have a recruiting advantage over the B1G?
 

upnorthkid said:
Schools can say we’ll only sign you if you’re in the CBA. Players can choose not to.
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And that's what the best ones will do, they'll sign in a different conference. And then it'll just be analogous to before NIL:

Before NIL: B1G schools make you go to class and SEC doesn't.

After NIL: B1G schools make you be a part of CBA, SEC doesn't.

Now they get their advantage again.
 


GopherTheJugular said:
And that's what the best ones will do, they'll sign in a different conference. And then it'll just be analogous to before NIL:

Before NIL: B1G schools make you go to class and SEC doesn't.

After NIL: B1G schools make you be a part of CBA, SEC doesn't.

Now they get their advantage again.
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I think that’s why it’s been slow is you need enough of a tide so it’s not competitive advantage but the big schools in both conferences like the version where they have all the money and donors and stay in power
 

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 about “loss of affection” damages? 🤔
 

GopherTheJugular said:
But then who goes first? Like, why would the B1G athletes want to lock themselves into "restrictions" while the SEC sits idle and lets their athletes continue with unlimited restrictions? And what would the motivation be for the SEC to try, now that they have a recruiting advantage over the B1G?
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Agreed. There would have to be some incentive for the conferences to work together or else you could hop conferences. We see this in professional sports.
 

Bob_Loblaw said:
Agreed. There would have to be some incentive for the conferences to work together or else you could hop conferences. We see this in professional sports.
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If conferences are doing negotiating and they start price fixing that may run afoul of some law I would think
 






Pure mess. Denny Green always strove to take the high road, but that's tough when there is no road.
 



Pompous Elitist said:
“Irreparable harm”

Nice try, guys. I wonder how many other NIL contracts have that language.
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“Irreparable harm” isn’t language in the NIL contract. Irreparable harm refers to a court rule: one of the items a litigant (such as Duke) must show in order to get a court to issue an injunction (in this case, preventing Mensah from transferring to Miami).

The issue of irreparable harm never got to the judge in this case, because Miami settled before the injunction hearing, obviously coming up with enough money to placate Duke’s butt hurt over losing Mensah. So, it took some dollars—probably substantial dollars—but the case is now settled and Mensah has officially transferred to Miami.

Someday the “irreparable harm” requirement for a court-ordered injunction versus the obviously phony commercial value of the NIL contract which forms the basis for the injunction request will actually get to a judge; can’t wait to see the ruling.
 
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Gophergrandpa said:
“Irreparable harm” isn’t language in the NIL contract. Irreparable harm refers to a court rule: one of the items a litigant (such as Duke) must show in order to get a court to issue an injunction (in this case, preventing Mensah from transferring to Miami).

The issue of irreparable harm never got to the judge in this case, because Miami settled before the injunction hearing, obviously coming up with enough money to placate Duke’s butt hurt over losing Mensah. So, it took some dollars—probably substantial dollars—but the case is now settled and Mensah has officially transferred to Miami.

Someday the “irreparable harm” requirement for a court-ordered injunction versus the obviously phony commercial value of NIL contract which us the basis for the injunction request will actually get to a judge; can’t wait to see the ruling.
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What law school did you go to, just curious. Your posts on this have been great.
 


Gophergrandpa said:
“Irreparable harm” isn’t language in the NIL contract. Irreparable harm refers to a court rule: one of the items a litigant (such as Duke) must show in order to get a court to issue an injunction (in this case, preventing Mensah from transferring to Miami).

The issue of irreparable harm never got to the judge in this case, because Miami settled before the injunction hearing, obviously coming up with enough money to placate Duke’s butt hurt over losing Mensah. So, it took some dollars—probably substantial dollars—but the case is now settled and Mensah has officially transferred to Miami.

Someday the “irreparable harm” requirement for a court-ordered injunction versus the obviously phony commercial value of the NIL contract which forms the basis for the injunction request will actually get to a judge; can’t wait to see the ruling.
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Page 7 Appendix A

 

Some guy said:
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
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If the kid never makes a single ad, it can still be illegal to claim it as a business expense etc.
 

Pompous Elitist said:
Page 7 Appendix A

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Interesting! Thank you. For those who care about this detail, I have been talking about the court/legal requirement that for a party to get a TRO it must show the court that it will suffer irreparable harm unless a contract breach were enjoined. Pompous rightly points out that Mensah, in his NIL contract with Duke. acknowledged and agreed that a contract breach by him would constitute irreparable harm.

If you don’t want to read the whole Complaint and Application for TRO, just read paragraphs 15 to 25, which describe certain language contained in Mensah’s contract with Duke. Paragraph 25 describes the key contractual provision.

This particular contractual provision would, in the first instance, satisfy Duke’s burden of meeting the court/legal rule that no TRO will issue without irreparable harm having been demonstrated to the court. The burden would then shift to Miami/Mensah, who could try to argue that the contractual provision isn’t sufficient to meet the legal test of irreparable harm because, e.g., the clause violates public policy or is an illegal restraint on trade; or that the clause is a contract of adhesion and Mensah was mistaken in signing the contract because he was misled by Duke regarding non-financial terms, etc. But given the lawyers and agents no doubt involved, these arguments would be doomed to fail and Duke’s contractual language would satisfy the court’s requirement that Duke show irreparable harm.

So much for the specter of the illusory commercial value of an NIL contract being an obstacle that might prevent a jilted team from getting TRO and later injunctive relief! Problem solved by excellent contract drafting—and by the fact that Mensah no doubt was advised by an agent and lawyer as to what the contract provided.

I assume (but don’t know) that the field has become advanced, and that all B1G revenue-sharing and NIL contracts are now standardized and similarly include the player’s express written acknowledgement that a contract breach creates “irreparable harm” sufficient to justify a court’s issuing a TRO and injunction upon a breach. Should hold up in court … unless the kid wasn’t represented, and actually had no idea of what he was signing other than the $$ terms. In situations such as that—grossly unequal knowledge and bargaining power—a court acting “in equity” might look past the contract language and still ask the jilted team to go through the steps of showing actual irreparable harm. Whew!

I’m ready to quit. Typing all these entries on my phone is too much for an old man.
 
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