Sports

Litigation Partner Ricardo Cestero shared his insights with CBS Sports regarding Duke University’s recent settlement with Darian Mensah, the star quarterback of its football team.

Excerpts: 

The contract is purely for the name and likeness rights in connection with institution of higher education marketing and promotion and football. What's really the issue is the exclusivity of his likeness for those two purposes. The contract is not for the services of actually playing football, nor can Duke compel him to play football for them, or, frankly, even to remain enrolled in their school. So it isn't an employment agreement. The interest that Duke has in Mensah really is limited to name, image and likeness. I think it is kind of a very slender read that they're trying to hold on to here to try to prevent him from going somewhere else. You can certainly imagine a scenario in which he could enroll in a different school and play football for a different school without granting that school his name, image and likeness. I think Duke, at the end of the day, is going to have a difficult time getting an injunction preventing him from going elsewhere simply because it doesn't really relate directly to the exclusive rights that they got under this contract. It's sort of tangential to those rights.

One of the most interesting parts of this case is it presents the fundamental question of how do schools enforce these name, image and likeness agreements? If they can't stop the student athlete from going and switching schools on them, effectively that only leaves the school with only being able to have one year NIL agreements. I don't know that that's necessarily a terrible outcome but that may be where this ends up – schools will just have to accept the reality that trying to do a multi-year NIL contract as a practical matter is not really enforceable.