Yes, what is missing is Berian's original Nike contract. Without seeing the specific language in that, everything is speculative. Nike would have included the reduction clauses to protect themselves in case Berian AGREED and signed. It Nike had not included them in their offer sheet, then they could not very well come back with a contract that included them -- that would be sleazy and unprofessional and shoddy legal work, too.
12 bucks to read the article?
Yeah, also Willis is signed to adidas, who sign way fewer athletes than Nike, but I believe support the ones they do sign much more.
Taoufiki Ain't Clean wrote:
Back in 2008 on NZ television, Nick Willis was asked by an NZ reporter 'what this (the bronze he had just won) means for your future career' and he responded that "this just paid off my mortgage" referring to his house in Michigan.
A house in Michigan is paid off. It wasn't a Manhattan penthouse, or a Hollywood Hills home, or just about anywhere in San Francisco.
Again, an athlete is self employed. Those top line numbers have to pay for quite a bit of stuff before there is free cash flow.
Amateur hour from all sides of this. Could have easily been avoided with halfway decent communication. Probably some petty personal stuff factoring in here.
2discover wrote:
All the speculation here about presence or absence of reduction clauses in athletics endorsement contracts ignores the role of discovery in litigation. In the discovery process, Berian is almost certainly going to be able to obtain a lot of information about Nike’s contracts, as well as competitor contracts Nike has been able to obtain. Non-disclosure provisions in the contracts, no matter how strong, concern voluntary disclosure by one or both parties to a contract, and will not control the litigation discovery process. Nike will not be allowed to hide behind contract non-disclosure clauses after Nike itself made reduction clauses in those same contracts highly relevant.
The basic scope of discoverable information under federal court rules is quite broad as specified in the Federal Rules of Civil Procedure as:
FRCP 26
(b)(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Statue court rules are very similar but may not include the express qualifiers about proportionality, etc. If there had previously been any doubt about the relevance of reduction provisions in other endorsement contracts, Nike has eliminated the doubt by basing its argument on those reduction provisions being ubiquitous. As a result, all athletics endorsement contracts as well as all athletics endorsement offer letters in Nike’s possession or control are relevant to both Nike’s claims as well as Berian’s likely defenses. Almost certainly disclosure of the contracts will be subject to a protective order which can alter what must be produced and the conditions under which the information may be used. For example, a protective order might limit the extent of the contracts which must be produced, might make the contracts for attorneys’ eyes only, and/or might allow redaction, e.g., to remove personally identifiable information.
If the Berian case were ever to go to trial or even if a motion for summary judgment were filed, some of that information would almost certainly be made public, but otherwise it will likely be kept confidential by court order. Still, Berian’s defense would have access to it and it can significantly affect settlement discussions.
I really hate to ask this, but how long have you been practicing law?
It would be ruinous for Boris to get into discovery battles, confidentiality disputes, and extensive summary judgment briefing. He needs to get this case booted fast, at least insofar as it involves requests for TROs and preliminary injunctions.
I quickly read through Boris's response. I really don't understand why his lawyers aren't focusing more on the standards for obtaining injunctive relief, specifically TROs and preliminary injunctions. In addition to the requirement to show likelihood of success on the merits, Nike needs to meet a number of equitable requirements regarding, among other things, irreparable harm and interests of the public. These are not typically easy standards to meet, especially when dealing with athletes whose livelihoods depend largely on how they perform once every four years.
The reduction clause issue seems very odd to me. My initial reaction is that a reduction clause would be a highly material term that could not be inferred by silence, which leaves me skeptical of Nike's position.
I've been involved in too many of these David versus Goliath legal disputes. They sicken me. In my field of appellate practice, one really good lawyer can crush an army of big-firm drones, but this kind of case requires some deft lawyering for the little guy. I'm rooting for Boris, but I'd like to see some analysis that gives me a little more comfort and confidence.
Spaghettimonster wrote:
Gaffers wrote:Love Symmond's tweet about Beast TC having no reduction clauses. Uh, Nick, outside of you, what will the other athletes be reduced from?
Does Katie Mackey's contract say "if you fail again, repeatedly, to make a USA team, we're gonna reduce you...?"
Nike has reduction clauses because they sign big contracts for the biggest stars with the biggest potential. At some point does Nike not have the right to reduce Mary Cain's multi year contract if she doesn't perform to the expectations of her agreement? Sorry folks, this is how life works in the real world and not the Fantasy Land Beast TC world.
If you're contracted to lay shingles on 15 roofs over a two month period, but you only complete six jobs, well guess what??
Anyway, I ran for a major competitor and I had a reduction clause. NB has reduction clauses too.
Without the Letsrun Hates Nike spin, it sounds like from the documents I've read that Nike acted in good faith and simply wanted to match the NB even if it meant no educations for BB, but NB and BB were trying to play if fast and loose. I'm not falling for it.
I agree that reduction clauses make sense send only seem fair to Nike. That is not the point though. If NB wants Boric badly enough to risk not having reduction clauses, then it is still a better offer than Nike offering the same except with reduction clauses. They agreed to match it and they did not.
Nike agreed to match it without reduction clauses if Mawi provided them with a NB FULL CONTRACT that reflected that.
Go back and read the original com/docs.
pop_pop!_v2.2.1 wrote:
Taoufiki Ain't Clean wrote:Back in 2008 on NZ television, Nick Willis was asked by an NZ reporter 'what this (the bronze he had just won) means for your future career' and he responded that "this just paid off my mortgage" referring to his house in Michigan.
A house in Michigan is paid off. It wasn't a Manhattan penthouse, or a Hollywood Hills home, or just about anywhere in San Francisco.
Again, an athlete is self employed. Those top line numbers have to pay for quite a bit of stuff before there is free cash flow.
You keep bringing this up. Who cares? Millions of Americans are in the same boat. You don't like it...get a real job.
They also get to take numerous "deductions" that aren't available to most americans...it evens out.
I hope Nike loses and other runners leave Nike as will. It is ridiculous.
From the top rope wrote:
Amateur hour from all sides of this. Could have easily been avoided with halfway decent communication. Probably some petty personal stuff factoring in here.
I thought this at first but now I'm fully on Berian's side if what they filed is true. It sounds like his agent informed Nike of everything required and Nike is trying to spread misinformation about not being clear on what was provided.
Seems like they tried to trick them into signing an inferior contract and got caught. Now they're only making things worse.
Primo Numero Uno wrote:
From the top rope wrote:Amateur hour from all sides of this. Could have easily been avoided with halfway decent communication. Probably some petty personal stuff factoring in here.
I thought this at first but now I'm fully on Berian's side if what they filed is true. It sounds like his agent informed Nike of everything required and Nike is trying to spread misinformation about not being clear on what was provided.
Seems like they tried to trick them into signing an inferior contract and got caught. Now they're only making things worse.
+1
Primo Numero Uno wrote:
From the top rope wrote:Amateur hour from all sides of this. Could have easily been avoided with halfway decent communication. Probably some petty personal stuff factoring in here.
I thought this at first but now I'm fully on Berian's side if what they filed is true. It sounds like his agent informed Nike of everything required and Nike is trying to spread misinformation about not being clear on what was provided.
Seems like they tried to trick them into signing an inferior contract and got caught. Now they're only making things worse.
-1
Reread the suit. They did not provide nike with the NB contract. They only provide him with the term sheet. So what that the Agent said the NB contract had no reductions. It's meaningless. It could have been not true, not agree too yet, just posturing, etc. The word on no reductions would have to come from either the NB contract or the NB terms sheet.
Nike isn't being unclear on what was provided. In fact, Nike is the only who that has spelled it out...in court filings.
Hawi and Boris have been spreading misinformation. Like getting served at the meet.
Avocado's Number wrote:
I really hate to ask this, but how long have you been practicing law?
It would be ruinous for Boris to get into discovery battles, confidentiality disputes, and extensive summary judgment briefing. He needs to get this case booted fast, at least insofar as it involves requests for TROs and preliminary injunctions.
I quickly read through Boris's response. I really don't understand why his lawyers aren't focusing more on the standards for obtaining injunctive relief, specifically TROs and preliminary injunctions. In addition to the requirement to show likelihood of success on the merits, Nike needs to meet a number of equitable requirements regarding, among other things, irreparable harm and interests of the public. These are not typically easy standards to meet, especially when dealing with athletes whose livelihoods depend largely on how they perform once every four years.
The reduction clause issue seems very odd to me. My initial reaction is that a reduction clause would be a highly material term that could not be inferred by silence, which leaves me skeptical of Nike's position.
I've been involved in too many of these David versus Goliath legal disputes. They sicken me. In my field of appellate practice, one really good lawyer can crush an army of big-firm drones, but this kind of case requires some deft lawyering for the little guy. I'm rooting for Boris, but I'd like to see some analysis that gives me a little more comfort and confidence.
Good post.
Do you want me to pass your info along to Hawi? If so, email me
robertjohnson@letsrun.comAnyways, we got an email from a lawyer who wrote this:
Avocado's Number wrote:
if it turns out that Nike is doing all of this just to F with Berian's head before the trials, I hope that Berian pursues claims against Nike for interference with a business relationship, emotional distress, etc... Whatever appearance fees Berian had lined up in future meets could be claimed as damages, in addition to going 6 months without a sponsor.
Assuming Berian is free to sign with whomever he wants come July, I wonder if NB is going to pro-rate the payment for year 1? Or will it run the contract July 1 > June 30? And it will end on June 30, 2018?
Foda pooda wrote:
Primo Numero Uno wrote:I thought this at first but now I'm fully on Berian's side if what they filed is true. It sounds like his agent informed Nike of everything required and Nike is trying to spread misinformation about not being clear on what was provided.
Seems like they tried to trick them into signing an inferior contract and got caught. Now they're only making things worse.
-1
Reread the suit. They did not provide nike with the NB contract. They only provide him with the term sheet. So what that the Agent said the NB contract had no reductions. It's meaningless. It could have been not true, not agree too yet, just posturing, etc. The word on no reductions would have to come from either the NB contract or the NB terms sheet.
Nike isn't being unclear on what was provided. In fact, Nike is the only who that has spelled it out...in court filings.
Hawi and Boris have been spreading misinformation. Like getting served at the meet.
Hawi: Here are the terms of the NB contract
Nike: BUT BUT Where are the reduction clauses?!?!?!
Hawi: There are no reduction clauses.
NIKE: WE WILL SUE YOU !!!!!!
Kiprop dope wrote:
Spaghettimonster wrote:I agree that reduction clauses make sense send only seem fair to Nike. That is not the point though. If NB wants Boric badly enough to risk not having reduction clauses, then it is still a better offer than Nike offering the same except with reduction clauses. They agreed to match it and they did not.
Nike agreed to match it without reduction clauses if Mawi provided them with a NB FULL CONTRACT that reflected that.
Go back and read the original com/docs.
Fool. Not a chance NB would provide their full ready to sign contact to Nike for their "review." Nike's contracts cannot be released to anyone because Nike considers then proprietary through their non-disclosure terms.
Nike is dirty wrote:
Hawi: Here are the terms of the NB contract
Nike: BUT BUT Where are the reduction clauses?!?!?!
Hawi: There are no reduction clauses.
NIKE: WE WILL SUE YOU !!!!!!
Or alternately...
Hawi: Here are the terms of the NB contract
Nike: Okay, we will match the offer.
Hawi: There are no reduction clauses in the NB offer, our deal is off.
Nike: Okay, we will match with no reductions. You really should have been more specific the first time.
Hawi: too late, you already said reduction clause. you can't take it back.
Nike: see you in court.
Foda pooda wrote:
Reread the suit. They did not provide nike with the NB contract.
Read my post above. Nike WILL LOSE this because they cannot use their contract terms to require a competitor to yield their full contracts to them.
Capriotti has lost his mind. He is doing the lawsuit out of spit, and likely has been told by his attorneys he will lose. But, he is doing everything possible to try to extract a competitor's proprietary contract for his review. He doesn't care if the loses. He has to have that contract to see how to rewrite his to beat his competitors.
Hawi: Here are the terms of the NB contract
Nike: Okay, we will match the offer.
Hawi: There are no reduction clauses in the NB offer, our deal is off.
Nike: OR REDUCTION CLAUSES ARE STANDARD! No changes allowed because they WE HAVE TO DROP them for EVERYONE. No can do!!!
Hawi: WE WILL SIGN WITH NB.
Nike: see you in court.
I don't know how much of this is available through the WSJ without a subscription, so here's a link to msn's web site. (I also don't know if the WSJ has the video):
I'll admit that I'd kind of like to see Nike fail miserably, but that's mainly because, in the early to mid-80s, it was the only publicly-traded company that I was interested in buying, and I didn't do it. At least now I have reasons other than bitterness, which tends to be an unhealthy emotion. (I didn't invest in Berkshire-Hathaway in the late 1980s, either, but I had good reasons for that. I mean, Warren Buffet was almost sixty years old. Who wants to risk a substantial portion of his life savings on an old guy like that?)
