Duke’s Lawsuit Against Darian Mensah Is a Warning Shot
OPENING STATEMENTS
Duke’s lawsuit against star quarterback Darian Mensah is the next stress test of the post-House settlement world. At issue is whether “revenue-sharing era” athlete contracts can function as retention tools while schools continue to insist athletes are not employees.
Following a Thursday ruling, Mensah is permitted to enter the transfer portal, but he cannot enroll at another school or play football for a different college team until a North Carolina judge rules on Duke’s request for an injunction that would prevent him from leaving. A hearing on that injunction is scheduled for Feb. 2.
Duke frames the dispute as a straightforward NIL licensing case. It claims exclusive rights to Mensah’s name, image, and likeness through Dec. 31, 2026, and argues he cannot re-license those rights elsewhere without breaching the agreement. On paper, that sounds like a commercial dispute. In practice, it looks like something else: a licensing agreement wrapped around employment-like expectations (stay, play, don’t shop, don’t move).
That classification matters. Courts treat ordinary licensing disputes very differently from disputes that restrain an individual’s ability to work. If a judge sees this as a backdoor non-compete for a student-athlete, Duke’s chances of securing emergency relief drop quickly, regardless of how the contract is labeled.
The school’s legal playbook is familiar. Duke points to multiple alleged breaches and says the contract entitles it to equitable relief. It is also relying on arbitration language, noting that the agreement requires disputes to be resolved there and that Duke has already initiated arbitration.
The contractual tools in play are typical of high-end NIL agreements:
Arbitration and forum selection provisions, which schools prefer because they are private and narrower
Exclusivity clauses built around the “you can’t re-license elsewhere” theory
Confidentiality and non-disparagement provisions Duke says Mensah violated
Remedies clauses asserting “irreparable harm” and authorizing injunctive relief
The most vulnerable provisions are the ones that look less like compensation and more like restraint. Courts are skeptical of clauses that functionally say “you can’t work elsewhere,” especially when the alleged harm can be valued in dollars.
TROs, arbitration, and the irreparable-harm problem
Duke initially sought a temporary restraining order to block portal entry while arbitration proceeds. While Mensah has now been allowed into the portal, Duke is still pushing for an injunction that would effectively freeze his next step. Two keys to consider:
First, irreparable harm remains Duke’s biggest hurdle. Duke argues that if Mensah leaves, its NIL rights become “practically worthless.” But this is still a contract dispute over the value of rights and obligations. Courts typically view disputes that can be remedied with money damages as the opposite of irreparable harm, particularly in the revenue-sharing era.
Second, arbitration cuts both ways. Duke says the bargain requires arbitration first. If so, a court may be reluctant to issue emergency relief that reshapes an athlete’s career while the chosen forum has yet to act, especially where the relief resembles a functional non-compete.
Arbitration is attractive to schools because it is confidential and can limit discovery and remedies. Athletes often resist for the same reason: fewer public-pressure levers and less procedural leverage.
What this signals next
The optics are unavoidable. A university suing a student-athlete plays poorly, even when styled as an NIL licensing dispute. That pressure often pushes cases toward quiet settlement, because no school wants to be the example of “we pay you like a pro and sue you like a pro, but still call you a student.” The broader signals are clear:
Contracts will get tougher, with clearer termination triggers, portal-timing language, and liquidated damages.
More litigation is coming as schools test enforceability to deter transfers.
The employee-versus-student tension will accelerate, because these disputes look increasingly like labor fights.
Duke v. Mensah is not an outlier. It is the next turn of the wheel. It won’t be the last.
EXHIBIT A
South Carolina legislators are racing to exempt schools’ new revenue-sharing agreements with student-athletes from FOIA disclosure, saying transparency would put in-state programs at a recruiting disadvantage if competitors can see what athletes are paid. That logic centers institutional competitive advantage—not athlete empowerment—and it repeats a familiar pattern in college sports: decisions about athlete compensation are made around athletes, not with their interests first. Public compensation information helps athletes (and their advisors) benchmark offers, spot inequities across sports, and negotiate from an informed position.
EXHIBIT B
We’re less than a year into the House settlement, and implosion already seems nigh. At last week’s NCAA convention, a notable shift emerged: prominent athletic leaders openly argued for an uncapped market in college athlete compensation because the current cap-and-enforcement model is collapsing in practice. Miami AD Dan Radakovich called the existing structure “really difficult to enforce,” warning that restrictions simply push payments into the shadows through boosters and third parties. Ohio State AD Ross Bjork echoed that schools “cannot govern the money any longer,” describing the $20.5M limit as a “soft cap” the market has already blown past. If the money is coming anyway, transparency beats underground dealing.
Meanwhile, Mark Cuban, a major donor to the newest CFB champion Indiana Hoosiers, has ironically made headlines for saying he supports a cap. “It’s like the salary cap and the second apron in the NBA. It makes you think more. You have to be more strategic, you have to be more tactical. It protects us from ourselves. That’s the thing about salary caps in sports—you see what happens with baseball, you see the Dodgers versus everybody else.”
ON THE DOCKET
What will come of Charles Bediako? The former Alabama basketball center has been granted TRO, allowing him to suit up for the Crimson Tide immediately while his eligibility challenge against the NCAA proceeds. Bediako, who left Alabama in 2023 and has played professionally in the NBA G League (including after signing NBA contracts), sued after Alabama’s attempt to restore his eligibility was denied. The TRO is short-term (reported as 10 days) with a hearing set for Jan. 27 on whether a longer preliminary injunction should enter. Just last month, NCAA president Charlie Baker said that the organization would not grant eligibility to any prospective or returning student-athletes who have signed an NBA contract.
FOOTNOTES
23%.
Year-over-year decline in ticket revenue at Colorado during head coach Deion Sanders’ second season.
