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2026 Portal QBs

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Dr. Citizen Cane said:
I heard that Big Ten contracts say if a school breaches the agreement, the monetary damages are whatever the university claims they are—so it’s basically subjective.
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Yeah, there's no way a provision like that is enforceable. Damages are whatever you can PROVE they are. You can have a liquidated damages clause the specifies the damages for breach, but those are pretty heavily scrutinized too and can't be punitive. You certainly couldn't have a liquidated damages clause that says "damages are whatever we say."
 
CanesNation26 said:
FYI, for those interested. Here’s what ChatGPt says. I haven’t done my own case law research:

I’m moderately confident about the direction (these “transfer-blocking” NIL-grab clauses are vulnerable), but not highly confident about the outcome in any given case because it will turn on (i) what exactly was granted (assignment vs. license), (ii) how broad/long it is, (iii) who the counterparty is (school vs. collective vs. sponsor), (iv) state law, and (v) whether the clause looks like a disguised mobility restraint.

Your intuition is right on the core point: people can sell or exclusively license valuable rights (including publicity/NIL rights) and courts often enforce that. So why isn’t it the same?

Because the details of what’s being “sold” in these transfer-deterrent deals often look less like a normal commercial grant and more like a non-compete / mobility restraint / personal-services workaround. Here’s the clean way to see it.

1) You’re describing two different animals


A. Normal commercial NIL deal (likely enforceable)

Example: “Athlete grants Brand X an exclusive right to use Athlete’s NIL in beverage ads for 12 months; Brand pays $200k; Athlete must do 3 shoots.”

That’s a specific, bounded license tied to real deliverables. Even if exclusive, it’s not primarily about stopping the athlete from playing for someone else; it’s about protecting the brand’s campaign.

B. “NIL rights lock-up” tied to staying at a school (legally shakier)

Example: “Athlete grants Collective/School exclusive control over Athlete’s NIL for all categories, all media, nationwide, for 2–4 years; if Athlete transfers, exclusivity stays, so Athlete can’t monetize NIL at the new school.”

That’s closer to a blanket restraint whose practical effect is: you can leave, but you can’t earn (or you can’t be marketed) if you do. Courts tend to treat that as a functional non-compete, even if papered as a license.

2) “But you can transfer NIL rights” — yes, with limits

Publicity/NIL rights are generally licensable (and sometimes assignable), but courts often treat them as quasi-property tied to the person, which triggers extra scrutiny when the deal:

  • is broad (covers “all NIL, all uses”),
  • is long (multi-year),
  • is exclusive in a way that blocks the person from earning elsewhere,
  • and isn’t clearly tied to concrete marketing deliverables.
So the question becomes less “can NIL be licensed?” and more:

Is this grant a reasonable commercial license, or a disguised restraint on the athlete’s ability to work/compete?

3) Why “assignment/exclusive license” doesn’t automatically get you home

Even if the athlete can sign away exclusivity, several doctrines can still bite:

(i) Restraint-of-trade / non-compete scrutiny (even if not employment)

Courts look at substance over form. If the clause’s effect is to prevent the athlete from “competing” (i.e., monetizing their identity) elsewhere, it can be treated like a non-compete and tested for:

  • legitimate interest,
  • narrow tailoring,
  • reasonable duration/scope,
  • proportionality to consideration.

A blanket “we control all NIL so you can’t monetize at your new school” is often not narrowly tailored.

(ii) Personal-services doctrine and “negative covenants”

Courts won’t force someone to render personal services. They sometimes enforce a negative covenant (“don’t perform for competitor”) only when it’s narrow and tied to a real bargain (classic entertainment cases), and even then they’re cautious if it effectively compels continued service.

A broad NIL lock-up can become an end-run: you’re not “forced” to play, but you’re financially hamstrung unless you stay.

(iii) Public policy / unconscionability

Even with payment, courts can refuse enforcement if:
  • the deal was take-it-or-leave-it,
  • bargaining power is lopsided,
  • the athlete is young/inexperienced,
  • terms are oppressive (e.g., broad assignment of identity rights),
  • the practical impact is punitive upon transfer.
This is especially true if the “consideration” looks like pay-for-play dressed up while also stripping future earning capacity.

(iv) Antitrust risk (big in the background)

If these clauses become a coordinated market practice among schools/collectives to deter transfers, plaintiffs can argue it’s a mobility restraint in a market already under antitrust scrutiny. That doesn’t mean every individual contract dies, but it increases litigation risk and can color “public policy” analysis.

4) The key distinction: “Exclusivity for a campaign” vs “exclusivity to trap”

Courts are much more comfortable enforcing:

  • Category exclusivity (e.g., only one shoe deal),
  • short terms,
  • defined deliverables,
  • use-based exclusivity (how the NIL is used),
than they are enforcing:
  • total-control over all NIL,
  • long terms that survive transfer,
  • rights held by a school-adjacent entity whose main “business interest” is keeping athletes,
  • penalty-like structures (clawbacks, liquidated damages untethered to real harm).
If the exclusivity survives transfer, the court will ask: what legitimate interest is being protected once the athlete leaves? Often the honest answer is: “retention.” That’s where enforceability starts to wobble.

5) How sure am I, really?

If the provision is broad (all NIL), long (multiple years), survives transfer, and is held by a school/collective rather than a real brand sponsor with a marketing rationale: I’m fairly confident it’s vulnerable (injunction unlikely; at minimum narrowed/blue-penciled; potentially voided depending on state).

If it’s a narrow, paid-for exclusivity tied to specific sponsorship categories/deliverables and the “survival” piece is limited to protecting already-created content or a defined campaign: I’m much less confident—that kind of deal can absolutely be enforced.

6) A quick “litmus test” you can use

Ask: If the athlete stopped playing sports tomorrow, would this NIL clause still make commercial sense?

If yes (it’s a real brand campaign/license), enforcement looks more normal.
  • If no (it’s valuable mainly because the athlete is at that school and it punishes leaving), it looks more like a mobility restraint
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WeBallinBoyz said:
The other thing is how it all unfolded. I mean this did leak during a funeral, his agent also reps Fisch…these things aren’t insignificant. To my understanding, his NIL deal was more ironclad than Mensah’s. And UW paid up extra.
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They can’t be.

You can’t restrict movement between organizations without something overarching (like collective bargaining and an anti-trust exemption).

Neither of these things are in place which is why it’s like the Wild West (almost unfettered capitalism).

Did you guys see that ASU RB that was dancing between schools? I’m sure he picked up some scratch at each stop he signed at. Had to give some back, but I’m sure he kept a portion of what he got upfront.
 
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