Niner Scribe

Odds are @McCannSportsLaw has this right. A settlement looms. Why? Some (long) thoughts: 1. Lurking just beneath resolution of the contract issues are issues neither Duke nor NCAA want resolved by a state court. (Is NIL inducement to play in substance of not form? Indicative of employment?) 2. Contract remedies are awkward here for Duke. They can devalue Mensah’s transfer option significantly — and maybe further induce him to stay — but they cannot keep him playing at Duke via contract enforcement alone. 3. It sure seems Miami is willing to pay enough to offset the costs to Duke of losing Mensah. Gains from trade usually means settlement. I think the background legal risk to Duke and the NCAA also tips the scales toward settlement. 4. The NCAA (wrongly in my view) thinks Congress will save it from the antitrust bludgeoning it has been taking. And so it kicks the can. Gets further bludgeoned. Kicks it again. And so on. The colleges don’t want Duke v Mensah to resolve these issues while they wait for their Great Congressional Hope. 5. There’s a lesson for student-athletes in the college athletics business as well. The payoff of the antitrust wins is to be treated like a professional. I understand we are in an awkward in between phase now where everyone is figuring out what that means — institutions and players alike. But the right that players WON is to be free of collective and collusive rules that limit competition for their services. A right people in most other industries have. BUT — are here comes the dose of medicine — the outcome of that competition is NOT just a bag of money. It comes in the forms of contractual rights and remedies. Just like for everyone else. Contracts in all kinds of industries restrict choices available to trading partners. Sometimes for really good reasons. Exclusive NIL rights might make the bag of money bigger but come with some real obligations. You, student-athletes, have caught the tiger by the tail. Be careful what you do with it!!!