DMoney, Esq.:
A lot of motions filed this morning. It’s Friday. You may have read about them in the Darian Mensah case and tried to make sense of all the new developments. We had to bring in an expert—someone who deals with injunctions all the time. Former senior counsel at the SEC—not the SEC that got smoked in the College Football Playoff, the Securities and Exchange Commission—also a law professor and now a partner at Sallah Astarita & Cox. One of the best friends Canes baseball has ever had. You’ve seen his name in TMZ—he helped Hawk Tuah beat her case. The one and only Jim Sallah.
Jim, I want to focus on what happened today. There was a motion for reconsideration of the TRO that was entered earlier this week, plus a request to expedite the hearing that was originally set for February 2. Walk us through what’s actually happening.
Jim Sallah:
The TRO was entered to prevent Darian Mensah from enrolling at another academic institution. During that initial hearing, the key issue raised was irreparable harm tied to the transfer portal deadline. The judge recognized that if Mensah could not enter the portal before it closed, that harm could not be undone, so the court carved out an exception allowing him to enter the portal while still prohibiting enrollment elsewhere.
That was the court attempting to preserve the status quo. But a TRO is temporary by definition. Under North Carolina law, it expires after ten days unless replaced by a preliminary injunction. The hearing for that was set for February 2.
DMoney, Esq.:
And the judge recused himself at that point.
Jim Sallah:
Correct. The judge stated he did not believe there was a legal conflict but recused himself due to a relationship with Duke University. That matters because it underscores how provisional this order really was. A TRO entered by a judge who immediately steps away is not some sweeping victory—it’s a placeholder.
DMoney, Esq.:
A lot of people online treated it like Duke won the case.
Jim Sallah:
That’s a misunderstanding of what a TRO is. It’s not a ruling on the merits. It’s not permanent relief. It simply freezes things temporarily so the court can take a deeper look later.
DMoney, Esq.:
So how do we get from that TRO to what was filed today?
Jim Sallah:
Shumaker Loop & Kendrick, a firm that specializes in restrictive covenants and labor issues, filed an emergency motion either to reconsider the TRO or, at minimum, to expedite the preliminary injunction hearing.
Their argument hinges on new evidence. The court focused heavily on the portal deadline but did not consider enrollment deadlines at other academic institutions. Mensah submitted an affidavit explaining that he did not know—at the time of the TRO hearing—that those deadlines were imminent. No evidence on enrollment deadlines was presented by either side during the original hearing.
The motion argues that if the court believed missing the portal deadline constituted irreparable harm, then missing enrollment deadlines is equally irreparable. Otherwise, the carve-out becomes meaningless.
DMoney, Esq.:
They’re also challenging the February 2 date itself.
Jim Sallah:
Yes. A TRO cannot extend beyond ten days without consent. Mensah’s counsel did not consent. Setting the hearing beyond that window effectively turns a temporary order into something more permanent, which is not permitted under North Carolina law. So they’re asking for a hearing immediately.
DMoney, Esq.:
From your experience, TROs are supposed to be extraordinary remedies.
Jim Sallah:
They are. When I was at the SEC, we sought TROs to stop Ponzi schemes, securities fraud—situations where the harm literally cannot be undone. The classic example is a company dumping chemicals in a river.
Here, Duke argues irreparable harm while simultaneously pursuing monetary damages through arbitration. That’s a contradiction. If the harm can be remedied with money, it’s not irreparable.
DMoney, Esq.:
That brings us to the part of this case I find most fascinating—damages. Let’s assume the injunction fails and this becomes purely a money case. Duke still has to prove what it lost. But on paper, this isn’t pay-for-play.
Because of the NCAA's position that NIL is not pay-for-play, Duke is fighting with a hand tied behind its back. Duke can't argue, “We lost games because Mensah didn’t play quarterback,” because that would be pay-for-play. That contradicts everything they’ve argued in the House litigation and in NIL cases generally.
So what’s left? NIL activity. Autograph signings. Appearances. Marketing. That’s the only category of damages they’re legally allowed to argue without unraveling the entire amateurism framework.
Jim Sallah:
Right—and this is where it gets difficult. In a normal competitive-harm case, you bring in an economist or sports business expert who testifies that fewer wins lead to lower ticket sales, reduced donations, less exposure.
Duke can’t do that here. If they put on an expert who says, “Our win projection dropped without Mensah,” they’ve just admitted football performance is the value they paid for. Once you say that in court, you can’t walk it back.
DMoney, Esq.:
So instead, they’d have to prove NIL-specific losses.
Jim Sallah:
Exactly. And NIL value is highly location-dependent. Darian Mensah at Duke is not Darian Mensah at Miami. The market is different. The fan base is different. The exposure is different. The media ecosystem is different.
If Duke tries to argue, “Whatever Mensah earns at Miami is what he would have earned here,” that argument collapses immediately. Durham is not Miami. Duke football NIL is not Miami football NIL.
DMoney, Esq.:
So even with a $4 million cap in the contract, they still have to prove actual loss.
Jim Sallah:
A cap doesn’t guarantee recovery. Duke still has to show real, non-speculative damages. NIL modeling is forward-looking, individualized, and speculative by nature. Arbitrators are skeptical of that.
That’s why I don’t believe this was ever truly about damages. This feels more like a deterrence case.
DMoney, Esq.:
A message to other athletes and staffs.
Jim Sallah:
Exactly. “This is what happens if you leave.” But message-sending cases are dangerous when they force you into arguments that undermine your own industry’s legal position.
DMoney, Esq.:
Especially when you’re a member institution of the NCAA arguing movement restrictions while insisting players aren’t employees.
Jim Sallah:
That’s the contradiction. Restrictive covenants apply to employees. You can’t restrict movement and deny employment status at the same time without opening the door to collective bargaining, benefits, and everything institutions have spent decades fighting against.
DMoney, Esq.:
I represent institutions, and I know that it's not always just about your best arguments to win a specific case. Institutions have to balance short-term wins against long-term risk because they get sued all the time. You don’t just ask, “Do we win this injunction?” You ask, “What does this argument do to NIL? To athlete employment? To collective bargaining? To future contracts?”
That’s why I expect resolution here. Not because Duke lacks lawyers or arguments—but because institutions understand there are arguments you simply don’t want to make, even if they help you in the moment.
Jim Sallah:
And that ties into something I’ve seen firsthand. I’ll give you an example from early in my private practice.
I had a case involving brokers who left one firm for another. The old firm filed for a TRO claiming trade secrets and non-solicitation violations. We went into court. No evidence. TRO denied.
Two weeks later, more assets moved. They filed another emergency motion. We went back. Still no evidence. Denied again.
Afterward, I called opposing counsel and said, “Why are you doing this? You’re not going to win.” And he told me, very candidly, “We’re not trying to win.”
He said the goal was to make life miserable—drag them into court, force them to pay lawyers, subpoena clients, disrupt their transition, and send a message to everyone else at the firm: this is what happens when you leave.
That’s when the light bulb went on. This wasn’t about the merits. It was about deterrence.
DMoney, Esq.:
This case feels familiar.
Jim Sallah:
Exactly. Duke may not actually expect to keep Mensah. But by filing a TRO, they create chaos, cost, and delay—and send a message to other athletes.
The problem is, when you do that as an NCAA member institution, you risk blowing up the very framework that protects you. You force yourself into arguments that undermine amateurism, NIL, and non-employee status.
That’s why I don’t believe this ends with an injunction. Someone writes a check. Arbitration resolves the money. Darian Mensah moves on. That’s the least destructive outcome.
