College Football’s New MVP: the NIL Contract Exclusivity Clause

It’s a crazy world when you need a law degree rather than a playbook to fully understand what’s happening in big-time college football. Let’s look at the instant replay of a recent Duke University lawsuit against quarterback Darian Mensah. Business owners and employees can learn valuable lessons from it.

In January, Duke sued Mensah, alleging he breached a name, image, and likeness (NIL) contract with the university. Before the last football season, Mensah signed a two-year NIL deal to play for Duke, reportedly for $4 million per year. But at the end of that season, Mensah entered the transfer portal with the intention of transferring to the University of Miami for reportedly more money than Duke was paying.

Duke persuaded the court to issue a temporary restraining order against Mensah transferring while it considered the case. Thereafter, Duke and Mensah reached a confidential settlement, and Mensah transferred to Miami.

Mensah or someone acting on his behalf likely paid Duke a significant sum to settle. Why couldn’t Mensah transfer without paying Duke? To understand why, let’s look at how NIL is currently structured in college sports.

Colleges fight stoutly against athletes being deemed employees. Also, NCAA rules prohibit “pay for play,” which means schools are barred from paying athletes to be athletes (try not to laugh).

Yet, for a contract to be enforceable, each side must give the other something valuable (“consideration” in legal speak). Because colleges can’t pay athletes for their athletic services, and because the law requires that the athlete give consideration to create an enforceable deal, schools pay athletes by purchasing licenses to utilize the athletes’ NIL.

“NIL” is another name for a long-standing kind of intellectual property: the right of publicity. Every living person has the right to control the use of his or her name, image, or likeness for commercial purposes, such as appearing in commercials.

Some parts of athlete NIL deals are usually exclusive. Whenever you license anything for someone else’s use, such as the right to use your NIL, you can grant a license on an exclusive or nonexclusive basis.

With an exclusive license, you promise not to license the same rights to anybody else. On the other hand, if you grant a nonexclusive license, you can license use of your rights to as many different people or companies as you want.

While NIL contracts between colleges and players typically are confidential, Duke revealed its contract with Mensah (with some redactions) in its lawsuit. In it, Mensah granted Duke an exclusive license to use his NIL in the fields of higher education and football through the end of 2026, which covers the next regular season.

In effect, the license’s exclusivity prohibited Mensah from transferring to play for another university. That’s because the only presently known, legal way to pay an athlete to play for a school is for that school to buy a license to that athlete’s NIL rights. Thus, if an athlete grants an exclusive NIL license to one school, he or she has nothing to license to a different school as consideration for getting paid.

If you’re a regular business, employee, or contractor, what should you learn from the Duke-Mensah dispute?

First, expect to be bound by the contract you sign. Despite some athletes believing they can casually exit NIL agreements, contracts are generally enforceable as written.

Second, the language of contracts matters. Mensah couldn’t do an NIL deal with Miami without first getting out of his Duke contract because of the exclusivity provisions in it.

To boost sales, many businesses enter into endorsement, influencer, and other promotional agreements. There, pay special attention to the details regarding exclusivity, scope of promotional obligations, content approval rights, rights to reuse content, duration, and termination provisions.

Finally, why couldn’t Duke force Mensah to keep playing for Duke if it had a solid contract giving it exclusive use of Mensah’s NIL? That’s because courts generally will not compel “specific performance” of a personal services contract. “Specific performance” is a legal term to describe forcing a party to perform the obligations of the contract, including obligations to do things.

When an employee or contractor breaches a personal services contract by quitting before the term is up, courts generally won’t require the person to keep working for the company, but, instead, may award compensatory damages and might issue an injunction against the employee doing certain things for the new employer.

That means businesses should write their contracts with the presumption that employees and contractors can quit at any time. They should utilize various contract provisions to incentivize the person to keep working and to create specific remedies if the person quits early.

In sports and contracts, if you don’t pay attention to the details, what looks like a winning play might turn into a sack. Focus on the details.

Written on February 18, 2026

by John B. Farmer

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