This article explains that college sports are now primarily governed by athlete contracts and court decisions, not NCAA rules. Courts are increasingly shaping NIL agreements—whether for recruiting, retention, or control—by enforcing contractual remedies instead of traditional eligibility rules. Disputes over NIL involve issues like damages for early departure, injunctions to prevent transfers, and the limits of court enforcement. As a result, courts are defining the future of college athletics, creating uncertainty and highlighting the need for clear laws or regulations.
March 09, 2026 | By Joshua S. Bauchner and Luke A. Kushner
College sports are no longer governed by NCAA rules, but by the contracts schools sign with athletes and how courts choose to enforce them. The NCAA once governed athlete movement, eligibility, and enforcement through centralized rules. Now universities, collectives, and athletes must rely on negotiated contracts to perform those functions, while courts determine how those agreements operate.
This shift has produced a consequential reality: college athletics is no longer governed by eligibility rules, but rather contractual remedies. For these reasons, judicial treatment of name, image, and likeness (NIL) agreements now defines college sports.
Litigation over NIL enforcement demonstrates this shift more clearly than any policy debate. Courts are now deciding whether a university can use a contract to control player movement in ways that NCAA rules once governed directly. Universities draft future NIL contracts based on what courts permit. Donors decide whether funding these agreements carries acceptable risk. Athletes evaluate how much leverage they truly have when signing a deal. In this way, court decisions will shape how the NIL system operates going forward, not just how past disputes are resolved.
I. NIL as Contract, Not Regulation
NIL originated as a concept rooted in intellectual property law rather than labor law. The right of publicity protects an individual’s interest in controlling the commercial use of name, image, and likeness. Early NIL litigation focused on unauthorized commercial exploitation of player likenesses, particularly in video games, and the resulting framework contemplated sponsorship and licensing arrangements untethered from athletic participation or institutional affiliation. That model treated NIL compensation as payment for commercial value, not as a mechanism for recruitment or retention.
However, modern NIL contracting has departed from that foundation. Universities and affiliated collectives now use NIL agreements to attract recruits, retain players, and stabilize rosters over multiple seasons. These agreements increasingly resemble long-term compensation arrangements, complete with structured payments and exit provisions designed to protect donor investment. As NCAA authority receded, contract drafting filled the regulatory vacuum. Private agreements now define the economic consequences of athlete movement in ways once controlled by eligibility rules.
The dispute involving the University of Georgia Athletic Association (UGAA) provides a concrete example of how this contractual framework operates in practice. UGAA seeks to recover $390,000 from former Georgia football player Damon Wilson II following his decision to transfer to the University of Missouri after the 2024 season. Wilson entered into a 14-month NIL agreement in December 2024 with a third-party collective, reportedly valued at $500,000 if he completed the full term, with compensation structured as monthly payments of $30,000 and two $40,000 bonuses tied to continued participation through future transfer-portal windows.
The agreement also contained a liquidated-damages provision requiring Wilson to repay the remaining value of the contract in a lump sum if he left the team or entered the transfer portal before the end of the term. After Wilson reportedly received only one monthly payment before announcing his transfer, the collective assigned its rights under the agreement to UGAA, which now asserts that Wilson owes the unpaid balance pursuant to the exit provision.
This dispute shows how NIL contracts now regulate athlete movement through pricing rather than prohibition. The agreement does not restrict transfer or limit future affiliation. Instead, the agreement assigns a financial consequence to early departure. Moreover, courts routinely invalidate liquidated-damages provisions that fail to reflect a reasonable estimate of anticipated loss, without substituting equitable relief to salvage the bargain. When a court strikes such a clause, the claimant must prove actual damages or recover nothing at all.
Judicial acceptance of this enforcement model would confirm that NIL agreements may impose economic consequences without restraining mobility, preserving a distinction rooted in contract doctrine. As a practical matter, this approach encourages universities and collectives to rely on carefully calibrated exit provisions rather than attempting to control athlete movement through injunctive relief.
II. From Licensing to Retention
The dispute involving Duke University and quarterback Darian Mensah tests the outer boundary of NIL enforcement. Duke seeks to enforce an NIL agreement requiring Mensah to give Duke the exclusive right to use his name, image, and likeness while he remained a Duke football player; meaning Mensah agreed not to license or use his NIL for another school during the contract term. After Mensah announced his intention to transfer, Duke took the position that money damages alone would not adequately protect its contractual rights or the value of its bargain.
For that reason, Duke asked a court for an injunction, seeking an order that would prevent Mensah from playing football for another university during the contract term. Although Duke characterizes the agreement as a licensing deal, in which the school paid Mensah in exchange for the right to use his NIL, the relief Duke seeks would functionally stop him from transferring and competing elsewhere. This approach does not merely make leaving Duke more expensive; it seeks to prevent the departure altogether.
This shift exposes the central tension in modern NIL contracting. Traditional licensing agreements compensate a person for allowing another party to use their name, image, or likeness for commercial purposes, such as advertising or promotions. Those agreements are not designed to recruit individuals or keep them from leaving for a competitor.
Using NIL compensation to persuade an athlete to enroll at a particular school closely resembles a signing bonus. Using NIL contract terms to prevent an athlete from transferring closely resembles a non-compete clause, a type of restriction courts scrutinize carefully in employment cases. In this context, calling the agreement an “NIL license” matters far less than how the contract operates in practice and what the requested court order would actually do.
Courts evaluating requests for injunctive relief face a different task than courts deciding whether to enforce liquidated-damages clauses. Injunctions require judges to exercise discretion and to consider whether money alone can fix the harm, whether the harm is irreparable, and how enforcement would affect the parties.
Further, an injunction that prevents an athlete from playing for another school raises heightened concerns because it controls conduct rather than assigning a financial consequence. Even when a contract breach appears clear, courts often hesitate to issue orders that effectively force an athlete (or an employee) to remain tied to a school (or an employer) through a court mandate instead of through agreed-upon financial terms.
These limits on court remedies put universities in a tough spot. Financial penalties in an NIL contract can make transferring less attractive and may encourage a player to stay, but money damages cannot force a player to keep playing for a school.
At the same time, lawsuits over NIL enforcement risk pushing courts to answer much bigger questions, including whether these agreements are really about licensing publicity rights or are instead being used to keep athletes at a school like employees. Those questions carry serious consequences for employment law and antitrust exposure. As a result, many high-profile NIL disputes create strong pressure to settle, not because the legal claims are weak, but because neither side wants a court to issue a ruling that reshapes the entire system.
III. Courts as the New Definers of College Sports
Judicial enforcement of NIL agreements will shape college sports more decisively than any remaining NCAA rulemaking. Congress declined to enact a comprehensive statutory framework. The NCAA lacks meaningful authority in the NIL space and continues to absorb antitrust defeats without offering a durable alternative. Courts now define the system by default, not through policy pronouncements, but through remedial choices.
Athletes have won freedom from collusive rules that once limited competition for their services. Market freedom, however, carries obligations as well as opportunity. Contracts in every industry shape choices available to trading partners, often for sound economic reasons. Exclusive NIL rights may increase compensation while imposing real constraints. Accordingly, contract enforcement now defines the balance of power in college athletics. Private agreements establish the rules of engagement. Courts determine their limits.
Federal and state courts across the country are now deciding these foundational questions about NIL enforcement one case at a time. Different judges will reach different conclusions about what NIL contracts mean, what remedies schools can seek, and how far institutions may go to enforce these agreements. Those inconsistent rulings will create uncertainty for everyone involved.
Universities will struggle to draft contracts that reliably protect their interests. Donors will face unpredictable risk when funding NIL agreements. Athletes will not know what obligations their contracts actually impose. This fragmented approach will encourage forum shopping and uneven bargaining power.
Until Congress or a governing body establishes clear rules, courts will continue to shape college athletics through individual disputes, and inconsistency will define the NIL era. In the meantime, lawyers advising universities, collectives, and athletes must assume that remedy selection, forum choice, and contract structure will matter just as much as the economic terms of the deal itself.
Joshua S. Bauchner is a Litigation partner at Mandelbaum Barrett PC in New York. Luke A. Kushner is an associate in the same practice.
Reprinted with permission from the March 9, 2026 edition of the New York Law Journal © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.