Hey legal guys, please weigh in on Darian Mensah

[GopherGrit]

If the NCAA were in a better spot strength-wise, I could see a simple rule: if a school induces an athlete to breach a signed contract with another school, the tampering school's wins are disregarded (no CFP or post-season bowl permitted) for the number of seasons of the subject contract, and tampering team's roster cap is reduced to 80 players during that period--Mensah's contract, I think, was for two years. I would also add that any player agent actively involved in inducing the breach of a signed contract is barred from representing NCAA student-athletes, in any sport, for the same time period. Contract interference problem solved.

Personally, just on the breaking the contract front -- I think the much better answer is to punish the player.

Sure, go right ahead, break your contract. And then you're ineligible next season.


If the school, conference, player ignore that ... then you revoke their wins and any championships from the NCAA record book. In basketball and most every other sport, you can also refuse to give them a berth to the NCAA championship.

That doesn't work in football though, as the CFP is an independent organization.

 

[Gophergrandpa]

Apologies that I don't quite follow what you're getting at here, but Duke went on record saying they worded the contract like that because they were afraid if they had instead put a buyout clause with a price of say $3M that some school like Miami would just come along and say "Pfft, I keep that in my car's glove box, now run along kid".

And Miami came along and stole the player anyway.

We’re saying the same thing, I believe. I’m thinking how high a liquidated damages clause number could you put in a player contract that would likely deter tampering—and still be upheld by a court as not being unenforceable as excessive? I would think in Mensah’s case the amount of his two year contract (was it $8M?). Don’t have an answer. Just trying to think through whether a liquidated damages clause would be something a school should or shouldn’t try to employ the case of a star player. Put another way: Duke settled for some $$ number. Was that more or less than a solid liquidated damages number would have been? I don’t know. Obviously the lack of liquidated damages (uncertainty) didn’t deter Miami. So maybe liquidated damages, in hindsight sight, might have been better. I don’t think we are disagreeing, just coming at the question from different starting points.

 

[Pompous Elitist]

Really good question. Not really sure the irreparable harm “acknowledgement” in a kid’s contract holds up in cases of a poorly informed or misled kid. The differential in knowledge and bargaining power is quite inequitable if the kid is unrepresented. But who’s going to spend the money to litigate the issue for a marginal player? So, schools like Duke clearly have the better side of the argument to stop transfers like Mensah from playing at Miami. But schools like Duke also IMHO have the much weaker side of the argument for big monetary damages based on a contract breach, because of the phony nature of NIL contracts. Duke might have argued that it would experience a big loss of revenue if Mensah didn’t play at Duke, but the same “speculative” damages/proof issue would be there, especially given the 13th Amendment’s proscription against enforced peonage. I think in the current state of affairs, lawsuits for injunctive relief for broken revenue-sharing/NIL will result (1) in negotiated big dollar buyouts for the best players and (2) players returning to their original schools when there isn’t a big money buyout on the other side.

To answer your question, I do think the “irreparable harm” acknowledgement in standard contracts will keep all but the most valuable/marketable players from attempting to breach their contracts. Why buy yourself a lawsuit that could instantly get a TRO slapped on you and your destination school (since you have already undermined your position by agreeing that irreparable harm exists) unless the destination school is a deep pocket ready, willing and able to buy an expensive release from your contract?

Suggestion: If the courts are going to enforce contractual acknowledgments of irreparable harm given by ignorant young men (perhaps with sleazy agents) who haven’t a clue what they’ve agreed to, why not go to the next logical contract step and include a high (but not unreasonable) liquidated damages clause in these contracts? If Mensah breaks the contract to go to another school in the same conference, he agrees that Duke will have suffered damages of at least, say, $2.5M ($1.5M to another conference). A facially-reasonable liquidated damages clause such as this would save the jilted school from the charade of suing for a TRO in order to squeeze some dollars out of the transition. Why not just monetize the damages up front?

This whole thing is such a soap opera, but it is rationalizing itself—at least in terms of the financial side of the transaction—as we watch.

Players can simply insist on that being written in. Or if Duke were to take their chances in court they could get nada. That would be a problem for the schools that have already engaged in this sleazy chicanery, I’d say?

 

[Pompous Elitist]

OK? So?

Duke said they did that because they were afraid if they put in a real number for a buyout clause .... that exactly what happened, would happen.

And it happened anyway.


BUT, the kid at Washington didn't get to leave. So, there's some hope that we can slap down these absurd athletes (and their agents) going forward. Duke's attempt flopped, clearly.

Contracts are always negotiable, yes? So why would any player with any leverage at all agree to such a thing?

Nobody with any brains is signing a non-compete, when they don’t need to.

 

[GopherGrit]

Contracts are always negotiable, yes? So why would any player with any leverage at all agree to such a thing?

Nobody with any brains is signing a non-compete, when they don’t need to.

Why are you beating around the bush?

Come out with it.


Make your actual allegation of "wrongdoing". Say it in clear language. So far, you haven't.


Who was trying to do wrong by who? How?

 

[GopherGrit]

We’re saying the same thing, I believe. I’m thinking how high a liquidated damages clause number could you put in a player contract that would likely deter tampering—and still be upheld by a court as not being unenforceable as excessive? I would think in Mensah’s case the amount of his two year contract (was it $8M?). Don’t have an answer. Just trying to think through whether a liquidated damages clause would be something a school should or shouldn’t try to employ the case of a star player. Put another way: Duke settled for some $$ number. Was that more or less than a solid liquidated damages number would have been? I don’t know. Obviously the lack of liquidated damages (uncertainty) didn’t deter Miami. So maybe liquidated damages, in hindsight sight, might have been better. I don’t think we are disagreeing, just coming at the question from different starting points.

If it had been $10M, I still think crypto bro's financing UMiami football -- doing it for the same reasons that Saudi princes own EPL teams -- just laugh and wave their hands.

How long until actual Saudi prices "buy" teams and players like they do in EPL?


It's absurd. I will not support it. They won't get my viewership

 

[Pompous Elitist]

Why are you beating around the bush?

Come out with it.


Make your actual allegation of "wrongdoing". Say it in clear language. So far, you haven't.


Who was trying to do wrong by who? How?

Show me a coaching contract that essentially bars a coach from leaving for any reason other than the school cutting them loose. Who would sign such a one-sided deal.

A smart contract protects both sides. When one party has leverage then they can lean on the other (see 80% guaranteed of remaining years salaries) but outside of REASONABLE non-competes I’ve never personally seen a contract that says you can’t practice your trade elsewhere under any circumstances should you take your talents elsewhere. Which is why I suspect Duke settled. Explaining why a fair buyout wasn’t included, to a skeptical audience may be difficult?

 

[GopherGrit]

Show me a coaching contract that essentially bars a coach from leaving for any reason other than the school cutting them loose. Who would sign such a one-sided deal.

A smart contract protects both sides. When one party has leverage then they can lean on the other (see 80% guaranteed of remaining years salaries) but outside of REASONABLE non-competes I’ve never personally seen a contract that says you can’t practice your trade elsewhere under any circumstances should you take your talents elsewhere. Which is why I suspect Duke settled. Explaining that to a skeptical audience may be difficult?

More words that don't make anything near a concise, explicit allegation of wrongdoing.

Why should I listen to your complaints when you can't even tell me in clear, concise language who did wrong and what they did?

 

[Pompous Elitist]

More words that don't make anything near a concise, explicit allegation of wrongdoing.

Why should I listen to your complaints when you can't even tell me in clear, concise language who did wrong and what they did?

Nothing wrong, or right. WWAJD. Explain this contract to a jury or judge like they’re fifth graders and explain how it’s reasonable.

Go ahead.

 

[GopherGrit]

Nothing wrong, or right. WWAJD. Explain this contract to a jury or judge like they’re fifth graders and explain how it’s reasonable.

Go ahead.

You don't deserve a response until you type out a post that says "I think Duke University committed wrong against Darian Mensah, because they ______" and fill in the blank with specific wrongdoings in your mind.

 

[Pompous Elitist]

You don't deserve a response until you type out a post that says "I think Duke University committed wrong against Darian Mensah, because they ______" and fill in the blank with specific wrongdoings in your mind.

Duke defending their claim of irreparable harm for lack of access to his NIL rights while at the same time arguing they are not engaging in a pay for play scheme and a very clear and direct employment relationship would be highly entertaining. May have order pizza in addition to popcorn for that.

This is all a farce, to anyone not steeped in college football delusions. Clearly.

 

[GopherGrit]

Duke defending their claim of irreparable harm for lack of access to his NIL rights while at the same time arguing they are not engaging in a pay for play scheme and a very clear and direct employment relationship would be highly entertaining. May have order pizza in addition to popcorn for that.

This is all a farce, to anyone not steeped in college football delusions. Clearly.

This is mostly nothing to do specifically with Duke, like they cooked up this scheme that no one could even comprehend before.

This is very much just the F'ed up state of college football, at the moment.

 

[Pompous Elitist]

This is mostly nothing to do specifically with Duke, like they cooked up this scheme that no one could even comprehend before.

This is very much just the F'ed up state of college football, at the moment.

Maybe they can put in a penalty of one year working the mines of Khazad-dum and say, hey, they signed! Sorree!

 

[Panthadad2]

If it had been $10M, I still think crypto bro's financing UMiami football -- doing it for the same reasons that Saudi princes own EPL teams -- just laugh and wave their hands.

How long until actual Saudi prices "buy" teams and players like they do in EPL?


It's absurd. I will not support it. They won't get my viewership

The crypto bros might be sweating every dime spent after this weekend.

 

[Gophergrandpa]

Players can simply insist on that being written in. Or if Duke were to take their chances in court they could get nada. That would be a problem for the schools that have already engaged in this sleazy chicanery, I’d say?

For teams that are seeking injunctive relief, you know the basic rule courts apply: one who seeks equity must do equity. Sometimes called the "unclean hands" doctrine. Since the transfer/NIL thing is, for some schools, looking to be a very dirty business, this rule of court might come into play in cases that aren't settled--that is, where a party actually wants a judge to make a final decision.

As to another more heated discussion going on in this chain about right and wrong, I will add that most normal people consider it morally wrong for a person to break a contractual promise ... especially when non-breaching party has already relied to his detriment on the promise. Such behavior evinces a selfish and narcissistic lack of integrity and trustworthiness. Courts, however, generally don't make a moral judgment on these matters, for the most part viewing contractual "opportunism" as a financial wrong to be remedied using money damages (rather than as a moral vice to be punished). In cases of a contractual breach, simple money damages are the "default" case ... and are also easier to prove procedurally, since the issue of "irreparable harm" is irrelevant, and the unclean hands doctrine doesn't really come into play, at least with such specificity. In certain specific situations--definitely a subset, such as personal services contracts with non-competes or "exclusive" sales of NIL rights for royalty payment--a court might address a contractual breach with non-monetary, "equitable" relief, such as an injunction or order for specific performance ... though specific performance is virtually never ordered in cases involving personal labor.

Anyway, I am checking out of this fascinating discussion because IMHO we've reached a point of diminishing returns. This thread has shown that there is a veritable hornets nest of legal claims and theories that might come into play in transfer/NIL disputes that cannot be solved by an NCAA administrative rule and therefore end up going to court or binding arbitration for an actual legal decision. Absent stronger and enforceable NCAA rules, federal legislation, or some kind of multi-conference compact in the nature of a CBA, we're in for a wild ride.

 

[Gophergrandpa]

If it had been $10M, I still think crypto bro's financing UMiami football -- doing it for the same reasons that Saudi princes own EPL teams -- just laugh and wave their hands.

How long until actual Saudi prices "buy" teams and players like they do in EPL?


It's absurd. I will not support it. They won't get my viewership

The good news is that only a couple of college teams will ever have that kind of potential for commercially-irrational financial dominance. It will be like the Dodgers and Yankees in baseball--operating in a different atmosphere than the rest of the teams (in which you avoid a soft salary cap by paying a huge luxury tax). I personally prefer a more balanced, hard salary-cap form of league, as in football and hockey. But both systems work.

 

[SeaBee_Gopher]

The good news is that only a couple of college teams will ever have that kind of potential for commercially-irrational financial dominance. It will be like the Dodgers and Yankees in baseball--operating in a different atmosphere than the rest of the teams (in which you avoid a soft salary cap by paying a huge luxury tax). I personally prefer a more balanced, hard salary-cap form of league, as in football and hockey. But both systems work.

Right, it seems like Miami and Oregon are the most obvious schools throwing around money like it just doesn't matter - the Dodgers and Yankees. Maybe Texas Tech too. Any others come to mind? It seems like they are almost 100% likely to make the CFP next year too and Miami gets to keep most of the proceeds because the ACC rolled over to keep them. The CFP may just be paying Miami's bill for this. They are truly in a unique situation. At least if Oregon buys a national championship, the whole B1G shares in the spoils.

 

[Pompous Elitist]

For teams that are seeking injunctive relief, you know the basic rule courts apply: one who seeks equity must do equity. Sometimes called the "unclean hands" doctrine. Since the transfer/NIL thing is, for some schools, looking to be a very dirty business, this rule of court might come into play in cases that aren't settled--that is, where a party actually wants a judge to make a final decision.

The claim of irreparable harm to Duke but not the player in case of a breach of contract is interesting, IMO? How would Duke support their argument.

A proper exercise of discretion requires the trial court to consider whether the moving party has clearly demonstrated: (1) that there is a substantial likelihood he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order.

As to another more heated discussion going on in this chain about right and wrong, I will add that most normal people consider it morally wrong for a person to break a contractual promise ... especially when non-breaching party has already relied to his detriment on the promise.

It could be argued that the circuitous compensation model, failing to treat Mensah as the employee he clearly is and deny his rights and his share of FICA solely to avoid the additional costs involved is also morally and ethically wrong. Fair to argue who is more ethically compromised?

Such behavior evinces a selfish and narcissistic lack of integrity and trustworthiness.

In light of the laughable compensation scheme and tax avoidance strategy currently in place this goes both ways…

Courts, however, generally don't make a moral judgment on these matters, for the most part viewing contractual "opportunism" as a financial wrong to be remedied using money damages (rather than as a moral vice to be punished). In cases of a contractual breach, simple money damages are the "default" case ... and are also easier to prove procedurally, since the issue of "irreparable harm" is irrelevant, and the unclean hands doctrine doesn't really come into play, at least with such specificity. In certain specific situations--definitely a subset, such as personal services contracts with non-competes or "exclusive" sales of NIL rights for royalty payment--a court might address a contractual breach with non-monetary, "equitable" relief, such as an injunction or order for specific performance ... though specific performance is virtually never ordered in cases involving personal labor.

Do personal services contracts create a employer employee relationship?
Do sponsorship or licensing arrangements ever have buyout clauses?

Anyway, I am checking out of this fascinating discussion because IMHO we've reached a point of diminishing returns. This thread has shown that there is a veritable hornets nest of legal claims and theories that might come into play in transfer/NIL disputes that cannot be solved by an NCAA administrative rule and therefore end up going to court or binding arbitration for an actual legal decision. Absent stronger and enforceable NCAA rules, federal legislation, or some kind of multi-conference compact in the nature of a CBA, we're in for a wild ride.

Definitely!

 

[gopherphil]

If Bobby April can sign a contract and three weeks later take a different job then so can Darian mensah.

 

[GopherTheJugular]

You don't deserve a response until you type out a post that says "I think Duke University committed wrong against Darian Mensah, because they ______" and fill in the blank with specific wrongdoings in your mind.

@Pompous Elitist didn't do that.

This is mostly nothing to do specifically with Duke, like they cooked up this scheme that no one could even comprehend before.

This is very much just the F'ed up state of college football, at the moment.

...and yet you responded anyways.

 

[Eastside Forever]

Although this discussion has been interesting, I am starting to have nightmares from my days at law school 50 years ago. As we know, the law can be elusive and subject to many non-legal factors and influences. Go Gophers!