shouldn't we be happy Nike cares?
this is one of the likely stars of the biggest global sporting event, with a feel-good story
if we don't think sponsors should be willing to be aggressive in fighting when a guy like this breaks his contract, aren't we basically saying the sport is a joke, sponsorships are really charity, and there's no real economic value here?
Genda Benda wrote:
Why send confidential info? wrote:What you missed is that the Nike [ASU] contract stated the contract is confidential. That means it cannot be shared with others. The ASU contract is available because contracts with public entities must be available to the public. Yet, even though Nike knows that the ASU contract must be made public they still shove their confidentiality agreement in their.
The offer by NB isn't presented to Nike in the form of a formal contract which would not be legal anyway with a ROFR, it is most likely presented as an offer sheet which Nike can choose to match the terms of or not.
A judge will decide on the legalities. There isn't a prayer that anyone on this board can make that judgement without seeing the original contract language, the offer sheet and Nike's response to the offer sheet.
Chances are BB and/or his agent was well aware Nike thought they had matched the deal.
My comment was to the poster who believed a ready to sign contract would have been provided to Nike.
It is a certainty the the provisions of the two offers--and contracts--are not a true match. There are non-monitary terms that have real value. Nike's were likely much lower. For example, Nike providing less coaching time, or less 'free' gear is given out, or limitations on cost of travel to meets.
I am only addressing this one issue, and forgive me if someone has already mentioned this, but an important legal component to consider is that where a contract is vague, such vagueness is construed against the party that drafted the contract. That is obviously Nike. The contract probably contains a clause something to the effect "this contract is not to be deemed drafted by one party or the other", which is solely to get around that legal principal. This does not always work, and the type of take it or leave it stance that Nike likely employs this is particularly the case.
Point being, if a court decided, in legal terms, with the above in mind, that this contract were drafted by Nike, and if there is a ROFR clause like the one quoted, the question as to what is "matching", in my opinion, is absolutely vague. If, for instance, BB had requested to be coached by his current coach (at NB) and Nike does not agree to that, BB should have a successful argument that they did not match.
Those are excellent points. It SHOULD work out that way, but if the case is in Portland that will favor Nike. Judges are very much human beings. I could show lots of links to articles about corrupt judges. We have the best legal system money can buy!
For those who wonder how good Berian's agent is, here's a list of his clients:
Boris Berian, Leo Manzano, Brenda Martinez, Maggie Vessey, Alexi Pappas, Kennedy Kithuka, Katie Zaferes, Kirubel Erassa, Camille Herron, Nicole Leach, Miranda Melville, Gabe Proctor, Jeneva (McCall) Stevens
Berian & Martinez just signed in January.
I haven't looked at client lists for agents in a while, so I have no idea if this is a top of the line list.
Berian has nothing to worry about. If Nike is awarded a monetary judgment Berian will declare bankruptcy. Nike is just doing this to rattle the nerves of a young athlete, the best 800m the US has. Nike is trying to help their lackluster Sowinski. Nike's contracts are so great that Sowinski has to race himself into the ground chasing performance bonuses, in an Olympic year. LOL!!! This shows Nike could care less about Team USA, it is all about Nike's profits. USATF doesn't care, as long as their cabal of chosen athletes are left alone.
For those who wonder how good Berian's agent is, here's a list of his clients:
Boris Berian, Leo Manzano, Brenda Martinez, Maggie Vessey, Alexi Pappas, Kennedy Kithuka, Katie Zaferes, Kirubel Erassa, Camille Herron, Nicole Leach, Miranda Melville, Gabe Proctor, Jeneva (McCall) Stevens
Berian & Martinez just signed in January.
I haven't looked at client lists for agents in a while, so I have no idea if this is a top of the line list.
I think perhaps Hawi works for a lower percentage, which is why he has signed a bunch of athletes recently. He is also a nice guy who the athletes feel comfortable with. He may be in over his head. When he was managing mostly his brother, that was easy work and Hawi only had to deal with road racing promoters, and his product (Meb) is one of the greats with a great draw, so much easier to get a good deal. The Diamond League circuit is a whole different ballgame. The gang controlling Diamond League meets, television rights to them, fees to the athletes and agents, etc. is a small group of people who have been dealing with each other for many years. I don't see them welcoming Hawi to the club.
Enjoy the three ring circus wrote:
Berian has nothing to worry about. If Nike is awarded a monetary judgment Berian will declare bankruptcy. Nike is just doing this to rattle the nerves of a young athlete, the best 800m the US has. Nike is trying to help their lackluster Sowinski. Nike's contracts are so great that Sowinski has to race himself into the ground chasing performance bonuses, in an Olympic year. LOL!!! This shows Nike could care less about Team USA, it is all about Nike's profits. USATF doesn't care, as long as their cabal of chosen athletes are left alone.
I don't think Nike is really looking for monetary damages.
Also, Sowinski is kick Simmonds butt all over the track and Simmonds has been careful in is racing so I guess that isn't helping either.
I bet brooks, Saucony, New Balance care about as much about Team USA as Nike does.....oh wait Nike PAID team USA millions while the others sat on their hands.
Mike in LA wrote:
I am only addressing this one issue, and forgive me if someone has already mentioned this, but an important legal component to consider is that where a contract is vague, such vagueness is construed against the party that drafted the contract. That is obviously Nike. The contract probably contains a clause something to the effect "this contract is not to be deemed drafted by one party or the other", which is solely to get around that legal principal. This does not always work, and the type of take it or leave it stance that Nike likely employs this is particularly the case.
Point being, if a court decided, in legal terms, with the above in mind, that this contract were drafted by Nike, and if there is a ROFR clause like the one quoted, the question as to what is "matching", in my opinion, is absolutely vague. If, for instance, BB had requested to be coached by his current coach (at NB) and Nike does not agree to that, BB should have a successful argument that they did not match.
The court's job in contract disputes is to discern the intent of the parties, and courts look at lots of things to do that, e.g. context, course of prior conduct, parol evidence, etc. Only when the court determines the contract provision is ambiguous and intent can't be determined do courts look to certain maxims of construction like construing it against the drafter. That's really a last resort because it doesn't really have anything to do with determining intent. It is basically the equivalent of the court saying: "this provision is a mess and we can't figure out what it means, so since you drafted it, you loose." The court won't get there unless and until it concludes that there was no meeting of the minds between Nike and Berian as to what material terms are at issue in determining what constitutes a match, and whether those terms have been met.
gnome de plume wrote:
The court's job in contract disputes is to discern the intent of the parties, and courts look at lots of things to do that, e.g. context, course of prior conduct, parol evidence, etc. Only when the court determines the contract provision is ambiguous and intent can't be determined do courts look to certain maxims of construction like construing it against the drafter. That's really a last resort because it doesn't really have anything to do with determining intent. It is basically the equivalent of the court saying: "this provision is a mess and we can't figure out what it means, so since you drafted it, you loose." The court won't get there unless and until it concludes that there was no meeting of the minds between Nike and Berian as to what material terms are at issue in determining what constitutes a match, and whether those terms have been met.
In this case the vagueness decisions is much easier. The basic Nike contract was completed. There is a Nike-biased black hole after that. One positive thing that could result from this case is that first refusal rights are tossed, and replaced with, allowed to make a counteroffer. The athlete gets to pick any contract they want, even for less money.
Continuation Klaus wrote:
gnome de plume wrote:The court's job in contract disputes is to discern the intent of the parties, and courts look at lots of things to do that, e.g. context, course of prior conduct, parol evidence, etc. Only when the court determines the contract provision is ambiguous and intent can't be determined do courts look to certain maxims of construction like construing it against the drafter. That's really a last resort because it doesn't really have anything to do with determining intent. It is basically the equivalent of the court saying: "this provision is a mess and we can't figure out what it means, so since you drafted it, you loose." The court won't get there unless and until it concludes that there was no meeting of the minds between Nike and Berian as to what material terms are at issue in determining what constitutes a match, and whether those terms have been met.
In this case the vagueness decisions is much easier. The basic Nike contract was completed. There is a Nike-biased black hole after that. One positive thing that could result from this case is that first refusal rights are tossed, and replaced with, allowed to make a counteroffer. The athlete gets to pick any contract they want, even for less money.
Sorry, you can always negotiation any terms in a contract including ROFR. Most people either don't think to negotiate that term or they don't want less money to get rid of that term. These are so called grown ups here.
There isn't as much vagueness as you amateur lawyers think. They had to match the "material, measurable and matchable" terms. Not EVERY SINGLE word of the offer.
material has a standard legal definition, measurable is fairly east to define. Matchable -might be a little vague, but it's not a killer.
Throwing in a bunch of terms that you learned as a 1L in contracts class doesn't mean you are ever close to the right track.
Booed buddy wrote:
Sorry, you can always negotiation any terms in a contract including ROFR. Most people either don't think to negotiate that term or they don't want less money to get rid of that term. These are so called grown ups here.
There isn't as much vagueness as you amateur lawyers think. They had to match the "material, measurable and matchable" terms. Not EVERY SINGLE word of the offer.
material has a standard legal definition, measurable is fairly east to define. Matchable -might be a little vague, but it's not a killer.
Throwing in a bunch of terms that you learned as a 1L in contracts class doesn't mean you are ever close to the right track.
Whatever, Nike Internet Communications Shill. Looks like Nike is now rather concerned they will lose the suit they filed.
Material is vague. The value of Nike gear vs NB gear is vague.
I learned what I know about contracts by reading them and signing them: about 100 contracts. Also, buy reading books about contracts to get a discount on professional liability insurance premiums.
And, yes, many terms are negotiable, AND negotiated terms do not mean less money. I recently negotiated two contracts that removed the requirement for professional liability insurance because a firm one level higher carried professional liability insurance, and that was all that was required at the top level. The contract value at my level remained exactly the same.
I was gone all weekend.
I think some of the posters are not reading what Boris Berian said. He told Sporting News "
When the time came for a new contract this year, Nike didn't match the New Balance contract."
Nike claims it did.
Some of you have read one side of complaint and decided you know the facts and Boris and crew are idiots because you read Nike said it matched the contract thus that means it matched.
This case easily could center on what constitutes a match. If interpreting the law was super simple lawyers wouldn't make a grand an hour .
As I said in my initial post Boris is entitled to his day in court and I support his right to get it. It is very hard for a small entity to financially survive a case in federal court. That doesn't mean he'll win or Nike is evil. I also have a lot of respect for Merhawi Keflezighi. He's always shown Letsrun respect when he's disagreed with something we've written and partially because of that I'll make the assumption he's not acting in bad faith. He and Boris get the right to respond.
I hope the running community gets to see one of these contracts. I assume it's standard for these things to not be sealed? An employment contract isn't a state secret. Can a lawyer chime in on that?
wejo wrote:
I hope the running community gets to see one of these contracts. I assume it's standard for these things to not be sealed? An employment contract isn't a state secret. Can a lawyer chime in on that?
I am not a lawyer, but I have read, negotiated, and signed a lot of contracts.
Employment contracts are not state secrets if they are entered between public entities and private business. Most employment contracts are considered confidential if they are entered between a private business and an employee, a consultant (services provider), a contractor (goods/materials fabricator to spec), or a vendor (goods/materials seller/reseller).
As an example, if you work for a company and you want to see the employment contracts of fellow employees that will not happen. Berian does not know the details of Centro's contract is, and Centro doesn't know Berian's.
Double checking here...who negotiated Berian's original Nike deal...was it Hawi, or Kimberly Holland, who supposedly had Brenda Martinez & several other BBTC athletes? Just asking...thanks.
State Secrets wrote:
wejo wrote:I hope the running community gets to see one of these contracts. I assume it's standard for these things to not be sealed? An employment contract isn't a state secret. Can a lawyer chime in on that?
I am not a lawyer, but I have read, negotiated, and signed a lot of contracts.
Employment contracts are not state secrets if they are entered between public entities and private business. Most employment contracts are considered confidential if they are entered between a private business and an employee, a consultant (services provider), a contractor (goods/materials fabricator to spec), or a vendor (goods/materials seller/reseller).
As an example, if you work for a company and you want to see the employment contracts of fellow employees that will not happen. Berian does not know the details of Centro's contract is, and Centro doesn't know Berian's.
Wejo, if you hit up some retired ex-Nike athlete, they may let you see their contract with the particulars erased. People are usually loath to reveal their compensation publicly though.
It doesn't matter how secret an employment contract is if the case goes to trial. All the relevant documents, including of course, the Nike/Berian contract will be attached to the court documents. Cases and their relevant documents are usually public.
re: whether the contract will be sealed during litigation.
probably. there's a presumption that federal litigation is conducted in the open, for obvious reasons. but parties can, under certain circumstances, file documents under seal (only the judge can read them). each territorial circuit has a slightly different standard, but they all let a party file under seal anything that is a "trade secret." the classic trade secret is coke's recipe, but includes lots and lots of other stuff -- basically anything that has value to a corporation only if it's kept secret (sorry for the circular definition). in a highly competitive industry, an employer, or in this case an endorser, can likely make a strong case that the terms of its endorsements are trade secrets because it will lose a competitive advantage if all the other shoe companies know its bargaining positions.
it's also worth noting the difference in the legal standard at different stages of a case. during discovery (early phase, when the plaintiff and defendant exchange documents and sit for depositions), the parties can agree to seal everything via a device called a protective order. if a dispositive motion is later filed, the agreement loses its operative effect and nike would have to meet the higher standard because it would have to justify withholding from the public the basis for a court's decision. most contract cases reach the summary judgment stage, but not all do. it might be one reason nike wants to settle earlier rather than later.
Double checking here...who negotiated Berian's original Nike deal...was it Hawi, or Kimberly Holland, who supposedly had Brenda Martinez & several other BBTC athletes? Just asking...thanks.
Kimberly Holland was Berian's agent when he signed the deal with Nike.
BBTC dumped Holland. They were very unhappy with her. Why, I don't know someone should ask them except there is almost certainly a confidentiality clause in their contracts with her.
Continuation Klaus wrote:
Material is vague. The value of Nike gear vs NB gear is vague.
I learned what I know about contracts by reading them and signing them: about 100 contracts. Also, buy reading books about contracts to get a discount on professional liability insurance premiums.
And, yes, many terms are negotiable, AND negotiated terms do not mean less money. I recently negotiated two contracts that removed the requirement for professional liability insurance because a firm one level higher carried professional liability insurance, and that was all that was required at the top level. The contract value at my level remained exactly the same.
Hate to break this to you, but you're beginning to sound like a tool. "Material" is not vague. What terms would be material to the prospective contract remains to be determined, but that does not make the term vague. And if you seriously think that a judge would find that Nike hasn't adequately matched the NB contract offer due to Berian's opinion that NB shoes are better than Nikes, you really shouldn't be negotiating contracts. The matter is trivial. I mean, do you really think the parties contemplated that Nike was going to provide its contracted athlete with shoes (or other gear) made by a competitor? Cuz that's the only way there is going to be a match, right?
Brief update that clarifies things more before we get a response from Boris' legal team.
I reached out to Merhawi Keflezighi, Boris' agent, for more comment on the lawsuit: "Our position is that Nike did not completely and timely match all of the material terms of the offer we presented them."
Background: Per the contract, Nike had a right of first refusal if Boris signed with another company during the time period discussed. Nike then had 10 days to match the other company's offer. If they didn't Boris was free to sign with the other company.
With the above in mind, I asked Merhawi if he felt Nike had not matched the terms of the New Balance contract in the 10 day period, why Boris then didn't just sign with New Balance and he wrote, "Boris has not signed a contract with any other footwear company because of this legal dispute and threats of legal action."
Lawyers chime in with your thoughts, but all this makes sense and I can see how we got where we are. NB offers Boris a contract, Merhawi shows a term sheet (simplified contract) to Nike. Nike says we'll match it. They then send over a more detailed contract and Merhawi and Boris are saying "that's not a match" this XYZ is important and isn't matched. Nike thinks it is and said we'll sue if you sign with someone else. Merhawi and Boris didn't want to get sued so maybe they were waiting for 180 days to end to sign with New Balance. Nike sues and the pressure is increased.
Lawyers I'm curious as to where you think this goes from here and timing. Berian is going to want to get paid this year. If this gets resolved after the Trials and Nike wins the dispute would they have to pay him for the full year even though he wasn't wearing Nike gear? Presumably not. If Boris wins, then he can sign with New Balance and they might likely just pay him anyway for the full year but that wouldn't be required either. Does anyone else think the timing of the suit increases the pressure on Berian? Maybe I'm reading too much into it because if timing was everything why not wait until the end of June to sue if you're Nike unless you thought Boris would go to court first.