Duke Settles After Trying to Prevent Quarterback from Entering Transfer Portal
And they say imitation is the sincerest form of flattery. Nah, if you really want to show your admiration for a young athlete, try to hold them in indentured servitude!
As Mark Schlabach reports on ESPN, Duke University football quarterback Darian Mensah previously announced that he would forego the NFL draft and play a final season for Duke. He has a Name, Image, and Likeness (NIL) agreement with Duke that is estimated to pay him $4 million next year. Not, enough apparently. Mr. Mensah changed his mind and recently informed Duke and the world that he would be entering the transfer portal. I assume that Mr. Mensah was motivated not by money, as $4 million should have been adequate to his needs, but by the shot at a national title and the attention that he would garner with a team that could compete for that title. He landed at Miami hours after he and Duke entered into a confidential settlement. Mr. Mensah played for Tulane in 2024. I’ve read quite a few articles about him. I could find no reference to this student athlete’s course of study. Does he have a major?
The case provides us outsiders with a peek inside the world of NIL contracts. Duke attached its contract with Mr. Mensah to the complaint, but I have not been able to access it. Some key provisions can be found here (thanks to contractsprof Michael Risch for the detective work tracking it down).
I would highlight three aspects of the agreement. First, the contract provides for eight grounds upon which Duke could terminate the agreement, including Mr. Mensah’s decision to enter the transfer portal. Second, although there is a mysterious exception, which I cannot parse because I do not have the entire agreement, generally, breach entitles neither party to damages. Third, the agreement provides that the student’s breach will cause Duke irreparable harm, entitling Duke to equitable and injunctive relief, but that Duke’s breach will not cause the student irreparable harm, nor will it entitle the student to equitable or injunctive relief.
Nothing that appears on this Blog is legal advice. That said, as we discussed in a previous post, the third provision looks to me like a disguised penalty clause and, if so, it ought to be unenforceable. I don’t know if any such provision has been tested in court. Duke may have settled in order to prevent an adjudication that the provision was unenforceable. Do agents for the players agree to this language because they think it can’t be enforced?
A related issue is that the entire agreement is subject to an arbitration provision. So why does Duke get to run to court? My go-to person on such matters is Tamar Meshel (below), so I sent up the bat signal in the form of an email, and Tamar assured me that, notwithstanding an arbitration clause, one can run to court to get an injunction. In this case, however, that might be another ground for striking the problematic one-sided clause highlighted above. Mr. Mensah has to arbitrate all of his claims; Duke does not. It can seek an injunction in court preventing Mr. Mensah from transferring, thus drastically increasing Duke’s bargaining power in case of an alleged breach.
Why are schools placing $4 million bets on quarterbacks? What do they get in return? A colleague insisted that the University of Oklahoma is one of the few college sports programs that pours money back into the university and not just into athletics. Not so. In a good year, OU’s athletics programs generate a small surplus, not much more than a law school can generate in a good year on a budget that is at most 1/10 of that of OU’s athletics programs. Last year, OU athletics was $44 million in the red. That loss was attributable to its move to the SEC, but still, what university program gets to bleed that much money? And that was after raising a record $93 million in donations. How long will boosters continue to give nearly $100 million a year and will that be enough once profit-sharing fully kicks in? It would like take about twenty years of success for the OU athletics program to make up for last year’s loss. Better to ditch your football team and just spend the money on softball pitchers.
I gave money to a kid, I won’t mention who. I’ve done it one time at UCLA, never met the young man. He was there a year, he left after the year. I wrote a sizable check and he went to another school. I didn’t even get so much as a thank you note. So, it’s one of those deals, to where I’m done with NIL. I want to see UCLA be successful but I’m done with it.
I know that it is a fantasy to think that those same donors would give $93 million/year to fund medical research at their alma mater or to attract scientists who could do cutting-edge research on particle physics. I’ve made this argument before; I will no doubt make it again. I am very confident that we would all be better off if we allocated invested in university education rather than in university athletics, and maybe that’s the goal towards which our political and university leaders should be working.
Thanks to contractsprof Jim Gibson for alerting me to the story.