Can NIL Deals Keep Athletes From Transferring? The Duke-Mensah Saga

The House v. NCAA settlement, reached in 2025, permitted universities and colleges, for the first time, to directly compensate Division I athletes. As we discussed at the time of the House settlement last year,¹ depending on how name, image, and likeness (“NIL”) licensing agreements between schools and athletes were structured, disputes were likely to arise, and there were clear risks to both schools and athletes. We noted in particular that “athletes should always consider the services that they are required to provide and the specific NIL rights they are granting to third parties. What is the term of the NIL license? Can the athlete make deals with competitors, or are they granting exclusive rights?”

The recent saga of Duke quarterback Darian Mensah and his effort to transfer to play at a new school provides a cautionary tale.² In January of this year, Mensah informed Duke that he would be entering the transfer portal – the NCAA's mechanism by which student-athletes may formally signal their intent to explore transferring to another institution and communicate with prospective schools. However, Duke and Mensah had previously entered into a multi-year NIL agreement that was not set to expire until the end of 2026. In connection with the agreement, Mensah granted Duke “exclusive” use of his “name, nickname, likeness (whether drawn or computer-generated), appearances, image and portrayals (whether photographed, filmed or otherwise), persona, performance, right of publicity, biographical information, jersey number, statistics, data, voice, testimonials, endorsements, initials, facsimile or original autograph/signature or other attributes or indicia of such Student-Athlete's persona,”³ and further agreed not to “make any similar commitment (whether through execution of a letter of intent or otherwise) to enroll at or compete in athletics for another collegiate institution.”⁴

After Mensah entered the transfer portal and publicly announced his intention to transfer via social media, Duke took the position that he had materially breached the NIL agreement and intended to pursue arbitration pursuant to the agreement's dispute resolution provisions. But first, given the impending possibility of the transfer, Duke sought and obtained a temporary restraining order in the North Carolina Superior Court, temporarily restricting Mensah from transferring schools, while also seeking a preliminary injunction that, if granted, would have prevented Mensah from transferring schools until the arbitration was resolved. Although the matter was ultimately resolved via a confidential settlement prior to the preliminary injunction hearing, allowing Mensah to transfer to the University of Miami, the fast-moving dispute generated significant interest as to whether Duke's request for injunctive relief might have succeeded and what this controversy might portend for future NIL arrangements among schools and star players.

While Mensah's agreement with Duke provided that any breach “shall cause Duke irreparable harm for which there is no adequate remedy at law and, in the event of any such breach, Duke shall be entitled to injunctive or equitable relief,”⁵ the North Carolina court would have granted the preliminary injunction only if Duke could establish, among other elements, that Mensah's transfer would cause irreparable harm not compensable by monetary damages. This required showing would have been challenging for Duke. Mensah's contract, in fact, provided for alternative remedies, including suspension of NIL installment payments or termination of the agreement,⁶ which undercuts any claim that monetary damages would be an inadequate remedy. Where an individual is an employee, courts are more receptive to arguments that the loss of unique services, business opportunities, reputation, or goodwill constitutes irreparable harm.⁷ Here, however, Mensah was not an employee of Duke, and Duke (like every other NCAA member school) has a strong interest in preserving the characterization of student-athletes as independent contractors, given the significant legal implications of employee status, including potential collective bargaining rights, wage-and-hour requirements, and other employment laws and protections.

The likely result, had the case not settled, is that the court would have denied the request for a preliminary injunction and allowed the arbitration to proceed, given the clear breach, with Duke ultimately prevailing on liability and receiving monetary damages. In that sense, the dispute highlights a central tension in NIL contracting and licensing: while schools may seek contractual mechanisms to retain continuity with marquee athletes, courts remain reluctant to enforce agreements in a manner that effectively restrains athlete mobility, particularly through injunctive relief.

It will be interesting to see the continued evolution of NIL contracts in light of the Duke/Mensah dispute. Perhaps buyout provisions, which have some of their own enforceability and public-relations concerns, as we've discussed before,⁸ might become standard. Other compensation structures, such as bonuses tied to the athlete's satisfactory completion of the full term of the agreement, might also come into vogue as schools seek to better align incentives between universities/colleges and athletes, while avoiding remedies that could be viewed as punitive or restrictive. Either way, the Mensah matter underscores the importance of careful contract drafting on the front-end, while setting realistic expectations on the back-end, of NIL agreements in this rapidly evolving legal landscape with a shifting focus toward safeguarding the rights of athletes.

Footnotes

1. See NIL Deals for NCAA Athletes: Daniel Ain Discusses Safeguarding Student-Athletes' Interests with “On SI,” Reavis Page Jump LLP (Apr. 21, 2025),  https://rpjlaw.com/nil-deals-for-ncaa-athletes-daniel-ain-discusses-safeguarding-student-athletes-interests-with-on-si/.

2. Duke Univ. v. Mensah, No. 26 CIV. 000605-310 (N.C. Durham Cnty. Jan. 19, 2026).

3. See  Ex. A to Verified Complaint, Name, Image, and Likeness License at § I(1)(i).

4. Id.  at § VII(3).

5. Id.  at § VIII(2).

6. Id.  at § III(2).

7. See, e.g., Nassau Sports v. Hampson, 355 F. Supp. 733, 736 (D. Minn. 1972) (services of professional athlete are “unique” and loss of “the unique services . . . represents irreparable injury”); BaseCap Analytics Inc. v. Amenn, No. 23 CIV. 09370, 2023 WL 8113524, at *4 (S.D.N.Y. Nov. 22, 2023) (granting preliminary injunction and holding that a “company's ‘loss of reputation, good will, and business opportunities' from a breach of contract can constitute irreparable harm'” (citing Millennial Plastic Surgery PLLC v. James, No. 21 CIV. 9590, 2021 WL 5988322, at *2 (S.D.N.Y. Dec. 16, 2021)); NovaQuest Capital Mgt., L.L.C. v. Bullard, 498 F. Supp. 3d 820, 837 (E.D.N.C. 2020) (“the possibility of permanent loss of customers to a competitor or the loss of goodwill will constitute irreparable harm where the damages are intangible and thus impossible to ascertain” (citing Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994)).

8. See RPJ's Daniel Ain Featured in Associated Press Article on NIL Buyouts in College Football, Reavis Page Jump LLP (Apr. 29, 2025),  https://rpjlaw.com/rpjs-daniel-ain-featured-in-associated-press-article-on-nil-buyouts-in-college-football/.

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