Taboo Trades: “NIL Buyouts, Liquidated Damages, and Disguised Noncompetes with Dave Hoffman.”

College sports is experimenting with a new contractual device: transfer-triggered “buyouts” in athletes’ name, image, and likeness (NIL) agreements. Are these provisions legitimate estimates of a school’s difficult-to-measure losses, or are they penalties and functional noncompetes dressed in the language of contract damages?

Contracts scholar Dave Hoffman joins Kim Krawiec, student co-host Liz Jahoda-Wassung, and members of the UVA Law Taboo Trades seminar to examine that question through the litigation over quarterback Brendan Sorsby’s University of Cincinnati agreement and earlier cases involving college-coach buyouts. The conversation covers liquidated-damages doctrine, ex ante estimates of loss, intent to penalize breach, unconscionability, bargaining power and sophistication, athlete employment status, actual damages, specific performance, and the limits of contract law as a tool for stabilizing the rapidly changing college-sports market.

Guest and hosts

David A. Hoffman is the William A. Schnader Professor of Law at the University of Pennsylvania Carey Law School. A widely cited contracts scholar, he uses empirical and interdisciplinary methods to study contracting theory and practice. He is a coauthor of Contract and Related Obligation: Theory, Doctrine, and Practice, writes the Contracts’ Empire Substack, and co-hosts the contracts podcast Promises, Promises with Tess Wilkinson-Ryan.

Liz Jahoda-Wassung is a second-year student at the University of Virginia School of Law. She studied audio engineering as an undergraduate and is interested in sports and entertainment law. Listeners can meet Liz and the other student co-hosts in the Season 7 introductory episode.

Kim Krawiec is the Charles O. Gregory Professor of Law and Glynn Family Bicentennial Professor at the University of Virginia School of Law. More information is available on her personal website and at the Taboo Trades podcast.

Further reading and listening

Cases discussed

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