Duke QB to Miami? Resolution reached | Page 9 | Syracusefan.com

Duke QB to Miami? Resolution reached

Jake said:
Forcing a trade where you get something in return for a legally binding agreement is in a different stratosphere than what is happening with Mensah
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True, that’s a good point about receiving something in return. I’m casting too broad of a brush regarding what it means to be “under contract” especially as it pertains to football players.

I think it’s because I’ve become numb to thinking being “under contract” means much in football. Coaches walk, players get cut despite being under contract, player holdouts, etc. Seems like players just want to get paid as much as they can and teams want to stop paying them when they no longer are worth the contract they signed.

But yes, I can see how a kid saying “I promise to be at Duke” and then saying “nevermind” is quite different than all the other scenarios I listed.
 
HyattsCuse said:
True, that’s a good point about receiving something in return. I’m casting too broad of a brush regarding what it means to be “under contract” especially as it pertains to football players.

I think it’s because I’ve become numb to thinking being “under contract” means much in football. Coaches walk, players get cut despite being under contract, player holdouts, etc. Seems like players just want to get paid as much as they can and teams want to stop paying them when they no longer are worth the contract they signed.

But yes, I can see how a kid saying “I promise to be at Duke” and then saying “nevermind” is quite different than all the other scenarios I listed.
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Coaches have their own buyouts negotiated for if they want to leave on their own. Sometimes it is $1M, sometimes it is $5M. The schools typically get paid when a coach breaches. Never approaches the number that the coaches get if they get fired though.

No reason why players cannot have a buyout equal to their NIL deal. If we have a player under contract(s) for $2M, no reason that buyout cannot be $2M. The taking school can just pay it ($2M, plus the value of the new deal, presumably at least $2M). Then, the players are just like coaches. They can buy themselves out of contracts. Makes a lot more sense than trying to force kids to stay.

One cannot control the timing though. To the extent that the portal is not an enforceable window, the contract can be bought out at any time.
 
FloridaCuse said:
Various reporters have reported there is no buyout.

I wonder if what was denied by the judge was the request for a TRO. If I recall correctly there is a high bar for that. While Duke could still ask for a preliminary injunction, that takes longer and this might just come down to how much for damages. And the status of Mensah's NIL rights.

I love it that Mensah's attorney wrote the contract and a court may rule against him. I'm monitoring his tweets to see if he says anything.
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Even though there's no buyout I would think that they could claim breach and that they have been harmed.
 
HyattsCuse said:
True, that’s a good point about receiving something in return. I’m casting too broad of a brush regarding what it means to be “under contract” especially as it pertains to football players.

I think it’s because I’ve become numb to thinking being “under contract” means much in football. Coaches walk, players get cut despite being under contract, player holdouts, etc. Seems like players just want to get paid as much as they can and teams want to stop paying them when they no longer are worth the contract they signed.

But yes, I can see how a kid saying “I promise to be at Duke” and then saying “nevermind” is quite different than all the other scenarios I listed.
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Just out, getting cut by a team is a possibility built into the contract, It’s not breaking the contract.
 
FloridaCuse said:
Interesting

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Here's the text of his full tweet [post]. I'll put at the end a reply tweet is followed up with in which he says he'll have more to say tomorrow about what he thinks Duke is really after.

Duke v. Mensah: A Hot Take on the NIL Contract Fight of the YearLet me start with the bottom line: I think Duke wins this dispute on the merits, and it probably won't be close. The contract is clear. Mensah agreed to an exclusive license of his NIL rights in higher education and football through December 31, 2026. He represented and warranted that he would not enroll at or compete for another institution. He promised not to initiate contact with other schools. He agreed to notify Duke within 48 hours of any contact from other institutions. He then, by all appearances, did exactly what he promised not to do—reportedly negotiating with Miami, announcing his departure on social media, and requesting entry into the transfer portal, all without the notice the contract required. The breach seems straightforward, and the contract appears valid and enforceable under North Carolina law. Duke's lawyers drafted a tight agreement, and Mensah (presumably with the advice of his own attorney) signed it. Contracts mean something. Or at least they should.That said, I have reservations about Duke's TRO. Frankly, if this contract did not contain Section VIII.2—in which Mensah specifically "acknowledges that any breach by Student-Athlete hereunder shall cause Duke irreparable harm for which there is no adequate remedy at law"—I would give the TRO essentially no chance. More fundamentally, I'm skeptical that the egg cannot be unscrambled. If Duke loses the TRO but prevails at a preliminary injunction hearing in 10 days or so, a court can still enjoin Mensah from playing for Miami. The 2026 season doesn't start until August. There is time for a proper hearing with full briefing and adversarial presentation. The TRO standard exists for genuine emergencies. I'm not convinced this qualifies. If I am missing something, someone LMK. What strikes me most about this contract is its remarkable asymmetry—and here, Duke's draftsmanship is both impressive and, depending on your perspective, troubling. Section VIII.2 provides that Duke is entitled to injunctive relief for Mensah's breach. The very same section provides that Mensah's remedies against Duke "shall be limited to the right to seek monetary damages through the dispute resolution process" and that "in no event shall Student-Athlete have the right in any manner to interfere with, enjoin or restrain" Duke's exploitation of his NIL. If I am reading this correctly: if Duke breaches, Mensah gets money and a demand for arbitration. If Mensah breaches, Duke gets to haul him into court and freeze his career. This is a one-way enforcement mechanism. The question is whether a court will enforce this asymmetry against an athlete who signed what amounts to a take-it-or-leave-it agreement. I suspect the answer is yes—parties are generally held to their bargains, even lopsided ones—but expect Mensah's counsel to make Duke defend every word of it.Finally, there is the question of damages—and here the contract may be Duke's own worst enemy on the TRO. Duke's complaint emphasizes irreparable harm and the inadequacy of legal remedies, as it must to obtain injunctive relief. But the contract tells a different story. Section VI.2 caps either party's total liability at "the total value of all consideration provided by Duke to Student-Athlete under this License." The parties also waived consequential, indirect, special, and punitive damages, as well as lost profits, regardless of foreseeability. In other words, and assuming I am reading this correctly, Duke's maximum recovery is the approximately $4 million it paid Mensah. That's real money—but it's also a sum certain, readily calculable, and entirely collectible from a player reportedly about to sign a more lucrative deal with Miami. If Duke can be made whole with a money judgment, where exactly is the irreparable harm? What all of this means is that Duke's damages are effectively stipulated by the contract itself. The parties negotiated and agreed that Mensah's exclusive NIL rights were worth approximately $4 million. That is not an arbitrary number—it is the arm's-length, market valuation of what Duke purchased. When Mensah repudiates and licenses those same rights to another school, Duke loses exactly what the parties agreed those rights were worth.The point is that is not a case requiring speculative damages calculations or replacement cost analysis. You cannot "replace" Darian Mensah's NIL with another player's; the rights are unique to him. The contract has done the damages math for us. Duke's harm is $4 million—functioning as something close to liquidated damages even if not styled as such. That calculability, ironically, may cut against Duke on the TRO, because an adequate remedy at law traditionally defeats a claim of irreparable harm

[His reply tweet:}

In terms of raw monetary damages to Duke, it's 4M. But that's not where Duke's leverage is. I will say far more tomorrow about what I think Duke's ultimate goal is here.
 
FloridaCuse said:
Interesting

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Very interesting. The cap on damages written into the contract surprised me - the harm is more than the simple cost of NIL offered to the player, if you end up with no viable QB option. But probably impossible to calculate or estimate.

Now... it is my hope that Duke and/or the NIL funding entity (I don't know who "does" NIL now, it used to be just private parties, so I wasn't sure how to answer about whether Duke could sue, in a previous post) sue Miami for tampering, force some righteous discovery, and recover additional damages that way. I also want discovery to get to Mensah's communications, although I don't know if that is possible.

Folks here need a big dose of FAFO in plain sight for all to see.
 
FloridaCuse said:
Here's the text of his full tweet [post]. I'll put at the end a reply tweet is followed up with in which he says he'll have more to say tomorrow about what he thinks Duke is really after.

Duke v. Mensah: A Hot Take on the NIL Contract Fight of the YearLet me start with the bottom line: I think Duke wins this dispute on the merits, and it probably won't be close. The contract is clear. Mensah agreed to an exclusive license of his NIL rights in higher education and football through December 31, 2026. He represented and warranted that he would not enroll at or compete for another institution. He promised not to initiate contact with other schools. He agreed to notify Duke within 48 hours of any contact from other institutions. He then, by all appearances, did exactly what he promised not to do—reportedly negotiating with Miami, announcing his departure on social media, and requesting entry into the transfer portal, all without the notice the contract required. The breach seems straightforward, and the contract appears valid and enforceable under North Carolina law. Duke's lawyers drafted a tight agreement, and Mensah (presumably with the advice of his own attorney) signed it. Contracts mean something. Or at least they should.That said, I have reservations about Duke's TRO. Frankly, if this contract did not contain Section VIII.2—in which Mensah specifically "acknowledges that any breach by Student-Athlete hereunder shall cause Duke irreparable harm for which there is no adequate remedy at law"—I would give the TRO essentially no chance. More fundamentally, I'm skeptical that the egg cannot be unscrambled. If Duke loses the TRO but prevails at a preliminary injunction hearing in 10 days or so, a court can still enjoin Mensah from playing for Miami. The 2026 season doesn't start until August. There is time for a proper hearing with full briefing and adversarial presentation. The TRO standard exists for genuine emergencies. I'm not convinced this qualifies. If I am missing something, someone LMK. What strikes me most about this contract is its remarkable asymmetry—and here, Duke's draftsmanship is both impressive and, depending on your perspective, troubling. Section VIII.2 provides that Duke is entitled to injunctive relief for Mensah's breach. The very same section provides that Mensah's remedies against Duke "shall be limited to the right to seek monetary damages through the dispute resolution process" and that "in no event shall Student-Athlete have the right in any manner to interfere with, enjoin or restrain" Duke's exploitation of his NIL. If I am reading this correctly: if Duke breaches, Mensah gets money and a demand for arbitration. If Mensah breaches, Duke gets to haul him into court and freeze his career. This is a one-way enforcement mechanism. The question is whether a court will enforce this asymmetry against an athlete who signed what amounts to a take-it-or-leave-it agreement. I suspect the answer is yes—parties are generally held to their bargains, even lopsided ones—but expect Mensah's counsel to make Duke defend every word of it.Finally, there is the question of damages—and here the contract may be Duke's own worst enemy on the TRO. Duke's complaint emphasizes irreparable harm and the inadequacy of legal remedies, as it must to obtain injunctive relief. But the contract tells a different story. Section VI.2 caps either party's total liability at "the total value of all consideration provided by Duke to Student-Athlete under this License." The parties also waived consequential, indirect, special, and punitive damages, as well as lost profits, regardless of foreseeability. In other words, and assuming I am reading this correctly, Duke's maximum recovery is the approximately $4 million it paid Mensah. That's real money—but it's also a sum certain, readily calculable, and entirely collectible from a player reportedly about to sign a more lucrative deal with Miami. If Duke can be made whole with a money judgment, where exactly is the irreparable harm? What all of this means is that Duke's damages are effectively stipulated by the contract itself. The parties negotiated and agreed that Mensah's exclusive NIL rights were worth approximately $4 million. That is not an arbitrary number—it is the arm's-length, market valuation of what Duke purchased. When Mensah repudiates and licenses those same rights to another school, Duke loses exactly what the parties agreed those rights were worth.The point is that is not a case requiring speculative damages calculations or replacement cost analysis. You cannot "replace" Darian Mensah's NIL with another player's; the rights are unique to him. The contract has done the damages math for us. Duke's harm is $4 million—functioning as something close to liquidated damages even if not styled as such. That calculability, ironically, may cut against Duke on the TRO, because an adequate remedy at law traditionally defeats a claim of irreparable harm

[His reply tweet:}

In terms of raw monetary damages to Duke, it's 4M. But that's not where Duke's leverage is. I will say far more tomorrow about what I think Duke's ultimate goal is here.
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I think you're correct on the TRO; no need for that (often ex parte) relief where the injunction hearing can get resolved even before spring practice.
I'm not too troubled by the inclusion of damages provisions together with what sounds like some fairly standard clauses about the availability of injunctive relief. You can draft (I think) alternatively to cover both; on Duke's side I'd want to insulate against an antitrust counterclaim among other things. Also in terms of one sidedness remember Mensah had a chance to shop himself around before he signed. I do wonder if the whole thing becomes moot if he decides to declare for the draft (is that still possible?).
 
I don’t see how Duke can lose this lawsuit - what winning means is a different thing - but Miami and this QB are going to owe and pay many many millions to Duke - obviously this kid is going to tell Miami to pay it - but it will be a huge number and damages could theoretically be 100 mil - Duke could theoretically win the title with him - that sounds like 100s of millions - and the same time - I can’t see this kid playing for Duke under this cloud of that he and Miami caused - I’m going say this gets settled for 20 mil that Miami pays to Duke
 
More from attorney David McKenzie last night:



McKenzie's full tweet:

From The Athletic: "However, Mensah cannot yet enroll at or play football for another school until the next hearing regarding a preliminary injunction, according to Heitner. The hearing has been scheduled for Feb. 2[.]" If that's not a partial TRO, I don't know what is. It surely doesn't give the impression of an outright denial.

In North Carolina, a TRO is good for only 10 days. If you get it, the parties return for a hearing on a preliminary injunction motion when a court will either dissolve the TRO or continue it until trial as a preliminary injunction. Monday, February 2nd tracks 10 days from now given that the 10th day (Jan 31) falls on a Saturday.

Perhaps the court decided it was too much to enter a TRO on Mensah entering the transfer portal. Here, I have expressed skepticism about such a TRO in prior posts. But I cannot understand the prohibition on Mensah enrolling or playing for another school absent some kind for injunctive relief.
 
Last edited:
From attorney David McKenzie this morning:



Full tweet:

First, I wasn't there. But here is what the Durham docket shows after yesterday's TRO hearing: "02/02/2026, Add-On Motion Hearing (2:30 PM), Return on TRO and Motion for Preliminary Injunction (RAND) Assigned to Judge Ed Wilson." You don't "return" on a TRO that wasn't granted, at least in part. The word "return" is dispositive. A TRO likely issued. You return on a TRO that issued and is set to expire. That's Rule 65. The February 2 hearing is likely to determine whether it continues as a preliminary injunction or dissolves. That's hornbook civil procedure.If you look at Duke's actual TRO Motion (not what Twitterheads say Duke moved for), here is what it asked for:

1. Enjoin Mensah from entering the transfer portal
2. Enjoin Mensah from enrolling at another institution
3. Enjoin Mensah from playing football elsewhere
4. Enjoin Mensah from licensing his NIL to another school
5. Enjoin any further breaches

If Mensah can't enroll or play for another school, then Duke likely prevailed on Nos. 2, 3, and presumably 4 and 5—the things that actually matter. We will know more later today, but to say that Duke failed at its TRO is straining my credulity considering what Duke got and the fact that the parties are "returning on TRO" at exactly the 10 day mark as Rule 65 requires.
 
FloridaCuse said:
[More evidence of tampering by Miami?]

Miami Herald:

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LOL, and this stupid knucklehead decides (with prompting?...) to test this all by trying to go to a direct conference rival. What a bonehead.

Duke has a rational motivation to say, if you won't play for us, you absolutely can not play for freaking Miami, of all places. If it had been UCLA or Texas Tech or whatever, maybe there is a way out.

Now what if Mensah says fine, rejoins the team, and just turns into a "locker room cancer" and doesn't really try. Can he afford to do that if he wants to keep playing football, especially professionally? (Wait, he is professional now, in reality - everyone is watching how he handles this...) Legally tho, wouldn't Duke have to pay his NIL anyway? It's not contingent on performance I think - could they stop paying if he got kicked off the team for cause?
 

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