Foley & Lardner LLP partner Donald Schroeder commented on the ongoing litigation between Duke University and its quarterback in the Law360 article, “As Duke Sues Its Own QB, NIL Tensions Come to a Head.”
Schroeder said the agreement between Duke and their quarterback is similar to the noncompete agreements used by employers in other competitive fields, like technology, engineering, and finance, adding that the school’s arguments create tension with the NCAA’s position that college athletes are not employees.
“You can’t play black and red at the roulette table at the same time and expect to win big money,” Schroeder explained. “It will be interesting to see if the NCAA jumps in on this fray, but there is an obvious obstacle to that, because it cuts against them with respect to the unionization effort by athletes.”
With Duke seeking injunctive relief that would keep their quarterback from transferring schools, Schroeder said a court may have a difficult time viewing the loss of an athlete as “irreparable.”
“It’s like sticking Jell-O to the wall with a fork. It’s not pretty, it doesn’t look good and it’s not very practical,” he said of this argument.
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