Breaking Down the Darian Mensah Lawsuit – And Why Duke Should Settle

Duke University filed a lawsuit against its, likely former, QB Darian Mensah last week. The situation has been rapidly developing with many, many questions being raised about what’s happening, and fans wanting to know what’s likely to happen. This lawsuit could have a seismic effect on the entire NIL industry, with effects far reaching who plays quarterback for Duke or Miami. Let’s break it down.

What Led to the Lawsuit?

Duke and Darian Mensah entered into a two-year Name, Image and Likeness (“NIL”) Agreement last year when Mensah transferred to Duke from Tulane. We know it’s a two-year agreement because a copy of the NIL Agreement is an exhibit to the lawsuit – which itself is noteworthy since the NIL Agreement requires both parties keep the document confidential, and most universities refuse to disclose them even in response to public records requests. Mensah’s NIL Agreement is only slightly redacted to remove the payment amounts, though it has been widely reported that Mensah is owed $4 million per year.

On December 19th, Mensah posted to social media that he would be returning to Duke for the 2026 season. But then on January 16th, the last day to enter the transfer portal, Mensah reversed course and formally requested Duke to enter him into the transfer portal. Mensah also posted that afternoon that he changed his mind and would be leaving Duke. Barry Jackson of the Miami Herald has reported that Mensah intends to join the University of Miami.

As will be discussed in detail below, Duke has filed a lawsuit alleging Mensah is in breach of his NIL Agreement.

What Does Mensah’s NIL Agreement Say?

Generally speaking, NIL is an intangible property right that a person owns. Students like Mensah own their NIL, and NIL agreements do not transfer ownership of a student’s NIL. The agreement is a license to the student’s NIL – like the difference between owning or leasing. The university is leasing the student’s NIL for a set period of time, after which the university will no longer have any rights to the student’s NIL. When you lease a car, you have to return the car at the end of the lease. When you lease an apartment, you have to vacate the apartment at the end of the lease.

Because the university is the big institution, most observers think of an NIL Agreement as establishing some level of ownership right over the athlete. Fans will often say the university “owns the rights” to an athlete. That is inaccurate – it’s like saying you “own” the car you are leasing or the apartment you are renting. The university is effectively leasing the NIL rights for a term in exchange for the athlete’s participation in “certain promotional services and activities distinct from the Student-Athlete’s involvement in regular team activities.“

This is not an employment agreement, and universities have universally bent over backwards to not call these employment agreements. Why? Because if student-athletes are employees, they are subject to labor laws that give rise to labor rights including the right to unionize (and overtime payment, unemployment, medical leave, maternity leave for women athletes, and a slew of other things that universities do not want to provide). So for everyone wondering why student-athlete compensation cannot be “collectively bargained” it’s because universities have long thwarted attempts for student-athletes to unionize through which there could be a collective bargaining agreement like the pro leagues.

Duke’s Decision to Bring a Lawsuit

The NIL Agreement actually requires the parties to arbitrate any dispute. An arbitration is an alternative forum to open-court litigation, where the parties agree to one or multiple arbitrators (usually a senior attorney or retired judge) to decide the dispute with the arbitrator(s)’ decision having the same binding effect as a judge issuing a judgment in a court of law.

Duke evidently filed a notice of arbitration on January 19th to start the arbitration process. But that same day, Duke also filed a lawsuit in North Carolina state court seeking a Temporary Restraining Order (“TRO”) and Preliminary Injunction (“PI”) to enjoin Mensah from joining another university’s football team. A TRO is a form of relief designed to preserve the status quo on an emergency basis. A PI is also designed to preserve the status quo during the pendency of a lawsuit (or in this case an arbitration proceeding). Duke argued that its request for a TRO and PI from a court was necessary, and couldn’t wait for arbitration, because Mensah was on the verge of transferring to another school.

The North Carolina court agreed. A TRO hearing was held on Tuesday (1/20) morning after very little notice was given to Mensah and his representatives. Duke e-mailed and texted Mensah at about 6:12pm on Monday night, minutes before the CFP National Championship was set to kickoff, that a lawsuit had been filed against Mensah and that a TRO hearing was set for 10:00am Tuesday morning.

The court agreed to enter a TRO preventing Mensah from transferring to another school until such time as a preliminary injunction hearing could be held, which is presently scheduled for February 2nd (though Mensah’s attorney, Darren Heitner, has indicated they will try to have this hearing as soon as possible).

Notably, the court said that nothing in the TRO “shall be construed as to prevent Mensah from entering into the transfer portal,” but entering Mensah into the portal appears to be a hollow victory if he cannot actually transfer to another school. The one silver lining is now that Mensah is entered into the portal he can directly talk with other schools without violating NCAA rules. But for all practical purposes, Mensah is a portal prisoner – a dame all dressed up for the ball but trapped atop her tower, able to shout to her prince below but not actually ride away.

What Happens Next?

A preliminary injunction hearing was originally scheduled for February 2nd before a different judge than the judge who entered the TRO. The original judge recused himself after entering the TRO due to a conflict of interest – he is a season ticket holder for Duke basketball, i.e. a booster. The new judge is Ed Wilson. According to his LinkedIn bio, he has been on the bench for 23 years, is a Lieutenant Colonel in the Army Reserves, attended Virginia for undergrad and Wake Forest for law school.

On Friday (1/23), Densah’s team filed and emergency motion to reconsider the part of the TRO forbidding Mensah from enrolling at another institution. The reasoning is that spring semester enrollment deadlines will have passed by February 2nd, so keeping Mensah enjoined from even enrolling as student could effectively preclude him from spring football even if the judge eventually denies to enter a preliminary injunction.

As of this post, the judge has not yet entered an order on Mensah’s emergency motion but the Court moved up its February 2nd hearing to Thursday, January 29th. Until the order is published, it’s a bit murky whether the judge agreed with Mensah’s motion or simply moved up the hearing date. At a minimum, we can expect Thursday’s hearing to decide if Mensah can enroll with the University of Miami’s football team.

How Will Mensah’s Team Approach the Next Hearing (Assuming No Settlement)

Assuming the hearing on Thursday goes forward (it shouldn’t, they should settle, as discussed below), a court must make several findings in order to preliminarily enjoin someone.

First, the court must find a likelihood that the moving party is going to prevail on their claim – in this case Mensah breaching his NIL Agreement by enrolling at another school prior to his two-year term expiring. Second, the court must find that injunction is necessary to prevent irreparable harm. Finally, the court must weigh several public and private interest factors in deciding whether the injunction is warranted.

Expect Mensah’s team to argue all three prongs, but the greatest focus will be on “irreparable harm.” What is that? Irreparable harm is harm that cannot be redressed by monetary damages. Common examples of irreparable harm include:

• Conduct that could lead to bankruptcy (you cannot really put a dollar figure on putting someone completely out of business)
• Loss of something priceless (you cannot replace a rare piece of art, or a personal item that has more meaning than monetary value)
• Dissemination of trade secrets (once trade secrets, like the Coca-Cola formula, are revealed you cannot put that genie back in the bottle)
• Harm to reputation or loss of goodwill (if public or customer opinion is swayed away from you, that could be immeasurable to how your business is damaged)

One final note on irreparable harm – Mensah’s contract has an acknowledgement of irreparable harm clause.

This clause is not worth much weight under North Carolina law. A senior federal judge from the Eastern District of North Carolina declined to enter a preliminary injunction against an employee with a similar irreparable harm clause in an employment contract, commenting: “While the Court gives weight to parties’ contractual statements regarding the nature of harm and attendant remedies that will arise as a result of a breach of a contract, these statements alone are insufficient to support a finding of irreparable harm and an award of injunctive relief.” ABC Phones of North Carolina, Inc. v. Yahyavi, No. 5:20-cv-0090 (E.D.N.C. April 3, 2020).

Again, the injunction is separate from monetary damages, which will be decided in arbitration. This lawsuit is only about whether Mensah should be enjoined from joining another school’s football team prior to the arbitration process completing or until his NIL Agreement expires at the end of 2026.

Courts are also required to look at the balance of hardships between the parties. I would expect Mensah’s attorneys to argue that the hardship to Mensah, being forced to stay enrolled at Duke, would outweigh whatever hardship there would Duke allowing him take his NIL to another football team. It would be interesting if Duke tries to tie his absence to the success of the football team notwithstanding the NIL Agreement clearly distinguishing his NIL obligations from his playing obligations.

Lastly, I would expect Mensah’s attorneys to argue the public interest factors. This case will have a seismic effect on school’s remedies to enforce NIL agreements. Is it enough for players to pay the schools an effective buyout of their NIL agreements, or can schools actually prevent students from transferring and playing elsewhere? Even though Duke is a private university, this will set a precedent for public universities like UNC and NC State who have a strong interest to ensure students keep to their NIL agreements and not run off if someone offers them a bag of money. Conversely, the school’s positions are getting dangerously close to treating the athletes like employees. If they are not employees (a steadfast position the school’s have universally taken), then they shouldn’t be restricted like employees signing non-compete agreements. Sure they may owe damages for breaking contracts, but they shouldn’t be restricted from attending whatever school they want.

Duke and Mensah Should Settle Before the Hearing

Mensah is certainly under pressure to settle the matter since he’s already past Miami’s (and other school’s) spring enrollment deadline. We don’t publicly know if exceptions to that deadline can be made. They probably can, but the longer this drags the out the more at risk Mensah is of missing spring practice even if the preliminary injunction is denied.

But Duke is under just as much, if not more, pressure to settle. Thursday’s hearing is a lose-lose situation for Duke. If Duke loses the hearing, future threats by schools to enjoin athletes breaching NIL agreements will ring hollow. It’s true that every NIL agreement is different, and this agreement will be decided under North Carolina law where other states might have a different outcome, but this will still set a major precedent that school’s cannot preliminarily enjoin athletes breaching NIL agreements.

On the other hand, if Duke wins the hearing there’s a real risk that this pushes student athletes closer to being considered employees in the eyes of the court. If an NIL Agreement can be effectively morphed into a non-compete agreement, the “students are not employees” position so steadfastly taken by schools gets a huge chip in it.

But if the parties settle, Duke walks away with a significant win for all universities. They successfully obtained a TRO, and the language of the TRO is pretty neutral in terms of language that could characterize Mensah as an employee. Very little of the merits were decided in the TRO, the original judge just wanted to freeze the status quo until he could receive full briefing from Mensah’s side. As it stands, the TRO is a strong deterrent to future athletes looking to breach NIL agreements. Duke better be careful what it wishes for if it pushes this further.

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