not a good outcome for college football
A Duke WR just transferred to Miami too. That has to be a real kick in the nuts to Manny Diaz who was fired as HC of Miami.
My guess (and it's just that) is that Menash paid some money back to Duke and they let him go. Duke probably figured it couldn't get a court to prohibit Menash from playing for a competitor, or that it wasn't worthwhle to do it -- judging from the story, Duke didn't want to be suing a student. Maybe there was some bad stuff that Duke didn't want disclosed in litigation. I think you're probably right that contracts like this don't do much to keep a kid at a school.
Don't see it as bad as what Lane Kiffin did to Ole Miss in the middle of the CFP. Contracts and breaches thereof are negotiable.
Have you ever heard of the theory of "efficient breach?" The law & economics "scholars" who dominated legal education for years thought it up. The theory holds that it's good for parties to breach contracts when that leads to a more profitable result. It is thought to explain why the law tends to give only damages for a breach of contract instead of forcing a party to perform. Menash and Kiffin are examples of what those "scholars" would call "efficient breaches."
For better or worse, that would probably be an anti-trust violation under existing law.
If you and I are in business, and we make a deal about our business practices --"we are going to charge a customer for changing from using one of us to using the other" -- that is an agreement "in restraint of trade," to use the anti-trust argot. Such an agreement can be upheld only if a court thinks it's "reasonable." The more businesses are part of our deal, the less "reasonable" it looks. And if the court thinks the agreement isn't reasonable, then any business that became part of it pays triple damages to the plaintiff.
That’s been the whole issue with all of this. The NcAA can’t do much like a real league would because they need an antitrust exemption.
Many breaches are inherently more efficient than litigation, where the only winners are often the hired attorneys. In some cases, it pays to litigate. In this case, spitballing numbers, let's say that Miami offered Mensah $1-2M more for his services. IIRC, Duke was paying him $4M, but let's use that figure. Miami, Duke and Mensah may have agreed to split the difference, and Duke walked away with an additional 0.5-1M in the deal, and still have the $4M in NIL they were going to pay Mensah. That's a win win, versus spending over $1M or more in legal fees, witness fees, court costs, travel, the uncertainty of who would win, etc. In my practice, I tell clients I'm a make love not war counsel. I don't litigate. I did litigation for a while, but I enjoy more building versus fighting and/or destroying. But litigation can be a terrific rush and rewarding if you don't mind giving up more of your personal life compared to doing transactional work.
Let me quote Judge Learned Hand, who served as a federal judge for a half century: "I should dread a law suit beyond almost anything else short of sickness and death." Let me also quote Abraham Lincoln in a lecture he gave to new lawyers: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
Exactly. Either Congress has to be persuaded to grant an anti-trust exemption (and the NCAA would have to compromise in order to get it) or players have to be allowed to organize into unions (as in, say the NFL) and collectively bargain with the NCAA. The latter works because the provisions of a collective bargaining agreement are exempt from antitrust law.
