This is a key concept, and one that should be discussed.
Too many people hyper-focus on NIL. Or "contract law".
But here is what is really going on.
First, all student-athletes are, at first glance, students. They have the right to choose the university they want to attend, they are required to enroll, they must go to classes, and there are penalties if they do not make particular grades or academic progress to a degree.
In addition, as with all students, student-athletes have the right to transfer universities as well. At one point, Thomas Edison invented the Transfer Portal, and now we have what we have today.
Where the world gets painfully complicated is when we introduce NIL to this. Or, as we should be saying, "we introduce the fiction that NIL is what we are bargaining for, when we all really know that it's a disguised version of pay-for-play, and since the NCAA is desperate not to create the concept of EMPLOYMENT for student-athletes, we are going to continue to invent new and unusual terms and new and unusual contracts to do things that were never intended to be done."
And this is where we circle back around to the agreement saying that the NIL deal is SUBORDINATE to NCAA rules. Thus, if the NCAA explicitly allows student-athletes to transfer, and if the NCAA has created (drumroll) The Transfer Portal, then an NIL deal should not overwhelm and extinguish a student-athlete's right to transfer. YES, the deal may require repayment and/or monetary damages if money or other consideration has been provided for services expected to be rendered AFTER the date at which a player transfers. These are reasonable expectations that honor contractual principles to be "made whole" in the event of a breach.
Where many people fall into an analytic trap, though, is when they objectify and elevate "contract law" above everything else. Sure, two willing parties can enter into a contract. But you can't enter into a contract to do something that is illegal. For instance, two people can't enter into a contract to have one person kill someone...or maybe they could, but a court would never enforce it. In a less violent example, two people can't enter into a contract to have one person serve as a slave to the other person and expect a court to enforce such an agreement.
And while some people may find those examples inappropriate, they are a good starting point. Because once you realize that even the BEST-WRITTEN CONTRACT cannot be enforceable in every situation, we then start to think about why a court might not enforce a one-sided and/or against-public-policy and/or illegal contract.
So a contract that says "hey, we acknowledge that this puny little NIL deal here is SUBORDINATE TO THE NCAA RULES, such as the ones that allow student-athletes to transfer and the ones that allow student-athletes to enter into one OR MORE different NIL deals, then we have to analyze whether contractual trickeration will allow well-funded and well-lawyered universities to buy person-based rights as if they were chattel.
But before we do that, let's dispense with two points, shall we. First, these NIL contracts are not, and have never been, some sort of harmonious, bilateral product of friendly conversations between two parties with equal bargaining power. Nearly every NIL contract is drafted by someone NOT on the same side as the student-athlete, and no amount of redlining changes to the document will ever change that. Second, the idea that every athlete has an attorney on retainer, or even a COMPARABLE attorney to what a university employs with their teams of lawyers, is just comical. For high school athletes and their families, these may have been the first contracts they've ever seen, let alone signed. And for student-athletes in the Transfer Portal, who may be negotiating with multiple schools, it may be very difficult to compare/contrast clauses, particularly if you only receive the written version shortly before you are expected to sign it.
Let's get on with things and try to wrap this up soon, shall we.
Duke would have you believe that in the RAPID time period in which they DID NOT CONTACT DARIAN MENSAH BEFORE THE PORTAL OPENED, representatives of the school had a rich and fulfilling conversation with this nice Tulane student-athlete and only included terminology in the NIL deal that would be mutually beneficial to both parties. And only such language necessary to protect both parties. But the evidence of the contract language itself displays otherwise. There are a host of terms, from the damages clauses to the "ownership" of rights to the ability to cancel that clearly favor one party. For instance, on the cancellation terms alone, it would have been possible to negotiate similar (but different) criteria that either party would need to fulfill to escape the remainder of the contract. This could have included notice provisions and an agreement to damages. But without doing so, the deal is not just one-sided, it is heavily weighted to one side.
Now I know, I know, some of you will say "but yes, contracts are allowed to be weighted more heavily to one party than another". In some situations, yes, but other situations may not be as clear. As just one example, if you contracted for a certain type of building materials, the contract might allow the builder more discretion over cancellation if the materials were unable to meet specifications. And what is so fascinating about THE PROBLEMS WITH NIL CONTRACTS is that they are not talking about what we really know they are trying to talk about. For instance, an NIL deal "says" it is about Name, Image, and Licensing. So why would you not allow a student-athlete to cancel such a deal? Perhaps that player has signed with Nike (smart, very smart) and halfway through his enrollment, the school switches to adidas. There may be any number of valid reasons why a student-athlete SHOULD be accorded the same rights as the university to decide to exit the NIL deal AS LONG AS ALL REPAYMENT AND/OR DAMAGES CLAUSES ARE SATISIFIED (notice requirements too).
But because NIL deals are really DISGUISED PAY-FOR-PLAY, universities and their lawyers continue to torture the English language by including all sorts of limitations that are more appropriate for "retaining an athlete's PLAYING services" rather than "retaining an athlete's NIL services". You can actually see this in all of the Dukie fans snarky Twatter comments about Darian Mensah. The Dukies like to talk about how Mensah's transfer will cause them "irreparable harm". HOW? Because they can't find another charming QB to smile for autograph signings? NO, because they can't find another quarterback to PLAY QUARTERBACK for them. Or how about the Dukies saying "waaaah, waaaaaah, you waited until the last day of the Transfer Portal, and now we can't find aother QB". Uhhhh, OK....so you signed him to a QB deal or an NIL deal? And how does this impact Tulane, who had the same exact problem about 365 days ago?
Simply stated, an NIL deal, even if a cleverly-disguised pay-for-play deal, cannot be allowed to overwhelm the perfectly valid rights that every NCAA student-athlete enjoys, which includes playing wherever he or she wants to play. In fact, if you ignore the "NIL fiction" side of things, and think about the athletic reasons, there are dozens and dozens of reasons why student-athletes could decide to change schools that go beyond "more money", or even that focus on how the ATHLETIC reasons will eventually ENHANCE the NIL reasons (i.e., build one's brand).
I both empathize and sympathize with the plight of universities (and by extension, the alums, boosters, and fans of that university). I realize that when you have recruited student-athletes, you would like to rely on multiple years of those student-athletes being enrolled at your university.
But that's not how things work anymore. And we should not be distorting contract law to defeat OTHER valid rights (such as the right to transfer) just because some money was spent. Does F$U get a refund when they spend $25 million on a terrible football team? NO. And so so should Duke not be allowed to argue that Darian Mensah will cost them "tens of millions of dollars" by transferring, and all on the sole contractual basis OF A MOTHER****ING NIL AGREEMENT.
I'd love for the old days of "I'm taking my talents to the University of XXXXX State for the next 4 to 5 years" to come back. But those days are never coming back. Contracts won't make those days come back. Lawyers won't make those days come back. Judges won't make those days come back. Those days are now a memory.
So let's get on with the new reality. Coaches are going to have to keep their players happy with a healthy does of transparent feedback about what a student-athlete has to do to earn playing time, or else give that player an exit ramp to another university. And if a student-athlete performs incredibly well, then PAY UP. You don't get to cheap-out on things like "Cal discovered Fernando Mendoza when he was wandering the mean streets of Coral Gables, and they signed him to an NIL deal with the promise of hot meals and a skateboard". You can't own Baby Jesus simply by signing him to a multi-year deal when he is 17 years old. And if F$U signs Coach Moe's Desir twins out of high school, they might have to deal with Coach Moe every year for at least 3 years.
Life isn't easy. Nobody can draft the perfect, ironclad, unbeatable, undefeatable, one-sided, always enforceable NIL (but really Pay-for-Play) Contract. Not only do they not exist, but they shouldn't exist.
The sooner that we acknowledge this reality, the sooner we can get on with our lives.
