If you notice that when I interviewed him on January 29th he mentions that he is "unsponsored".
If you notice that when I interviewed him on January 29th he mentions that he is "unsponsored".
Bring Back the 880 wrote:
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.
Don't they only get one chance to match the offer though? If they don't match it on the first offer then Boris is free to walk? Or do they get to make repeated offers (matching or not) until something is acccepted?
rojo wrote:
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?
Just to clarify your post for others, I want to be clear that I didn't write that email that starts out with "if it turns out that Nike is doing all of this just to F with Berian's head . . . ." (If nothing else, I just wouldn't use that language.) For a number of reasons, I'm not sure that my first choice would be to pursue claims of intentional inference with a business relationship and intentional infliction of emotional distress, but that's not to say that there aren't reasonable options available to Boris.
I don't want to interfere with the work of Boris's attorneys, but I do hope that they are at least consulting with someone who deals with these kinds of cases fairly regularly (and successfully). I think it's hard to jump into such cases cold, especially since time would seem to be of the essence. It certainly sounds as if this litigation is affecting Boris's preparation for (and perhaps participation in) the Olympic trials and Games, which is really disturbing, since this seemed as though it might turn out to be one of the great stories in the sport this year.
Avocado's Number wrote:
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.
I agree completely. They're too focused on the facts of this specific case instead of arguing how categorically inappropriate Nike's request is. I don't believe they cite any law at all.
800 dude wrote:
Avocado's Number wrote:
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.
I agree completely. They're too focused on the facts of this specific case instead of arguing how categorically inappropriate Nike's request is. I don't believe they cite any law at all.
Analysis by guys who sound like they don't have a lot of courtroom litigation experience versus pleading drafting experience.
or reality wrote:
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.
That actually goes against what Nike said in it's own court documents
maybe but cravath now pays new law graduates $180k to start. Berian came right out of the box last year with incredible improvements and ran 1:43.3, which Symmonds didn't beat until multiple years into his career and has run faster only once or twice. Berian by now has shown that was no fluke with the World Indoor Gold and a victory at Pre. I just hope all this nonsense doesn't harm his preparation for Trials and Rio. I'd love to see him run 1:42 mid this year and challenge for the gold. It will be tough with Rudisha and Bosse running so well right now (1:13.1 may not be at the level of Rudisha's 800m world record, in which he split 1:14, but it shows both those guys are going to be ready to run 1:42 very soon). But he has a break if Amos and Aman continue to run below their high standards.
Am I wrong, or is this the crux of the matter?
Nike wrote...
Notwithstanding your email, because the New Balance Offer is silent on reductions and NIKE is only obligated to match the terms stated in the New Balance Offer, we will send to you a new contract which will include the stated terms of the New Balance Offer as received. However, if material terms were omitted from the New Balance Offer, such as the purposeful exclusion of reductions, please provide to us a for review a revised offer from New Balance that reflects that and all other material terms.
my paraphrase is this: we didn't see any mentions of reductions in the term sheet, so we put them in our contract. however, if the new balance contract doesn't include reductions, and you consider that important in terms of matching the offer, let us know. we fully intend on matching the terms, but we just need to know what they are
am i wrong in reading this? i didn't see a response to this in the documents posted. whether or not it was dumb for nike to assume the new balance contract included reductions or not doesn't seem like it should matter, because they stated their assumptions and asked for clarification,
Definitely not a lawyer wrote:
Am I wrong, or is this the crux of the matter?
Nike wrote...Notwithstanding your email, because the New Balance Offer is silent on reductions and NIKE is only obligated to match the terms stated in the New Balance Offer, we will send to you a new contract which will include the stated terms of the New Balance Offer as received. However, if material terms were omitted from the New Balance Offer, such as the purposeful exclusion of reductions, please provide to us a for review a revised offer from New Balance that reflects that and all other material terms.
my paraphrase is this: we didn't see any mentions of reductions in the term sheet, so we put them in our contract. however, if the new balance contract doesn't include reductions, and you consider that important in terms of matching the offer, let us know. we fully intend on matching the terms, but we just need to know what they are
am i wrong in reading this? i didn't see a response to this in the documents posted. whether or not it was dumb for nike to assume the new balance contract included reductions or not doesn't seem like it should matter, because they stated their assumptions and asked for clarification,
Yes, you are wrong how you are reading it. Nike will not remove the reduction clauses because that would set a precedence to remove them for any offer from a competitor who no intent to include them. To call Nike's bluff all competitors have to do is make offers without those clauses and Nike will be forced every time to exclude them. Nike would get hammered this way and there is no way Caprioti will bend over every time and agree to potentially lose money.
Curious as to why NB didn't offer Boris something last year before he signed with Nike? He was training with the Big Bear team before his breakout. Was NB reluctant originally?
Yes, you are wrong how you are reading it. Nike will not remove the reduction clauses because that would set a precedence to remove them for any offer from a competitor who no intent to include them. To call Nike's bluff all competitors have to do is make offers without those clauses and Nike will be forced every time to exclude them. Nike would get hammered this way and there is no way Caprioti will bend over every time and agree to potentially lose money.
I'm still confused. Why wouldn't Berian simply confirm that no reductions were material terms? I didn't see any response to Nike's email in the documents posted, and his legal team makes no mention of confirming this in the response they filed. If they had confirmed it, case closed, right?
This article says that the two sides met yesterday in federal court in Portland but no rulings were handed down.
I wonder how long they'll drag this out?
Is it too late for New Balance to come in and offer him a new contract for much more, like $175k? Surely Nike is going to eat crow on the PR side and on the law side dealing with this, so why not mop up?
Still confused wrote:
I'm still confused. Why wouldn't Berian simply confirm that no reductions were material terms? I didn't see any response to Nike's email in the documents posted, and his legal team makes no mention of confirming this in the response they filed. If they had confirmed it, case closed, right?
Because he is trying to get out of a contract with Nike. He never wanted Nike to match the deal and may not have included the detail about no reductions on purpose in order to try to weasel out of this.
I don't think he should be forced to sign with Nike, but I have no idea how much extra they paid him in '15 for the right to match competing offers for 180 days after his contract ended.
This article says TRO granted but I've seen it reported elsewhere that Boris is entitled to wear BBTC singlet but not exclusive NB apparel. If you read BB's lawyer's opp'n to the TRO they argue that BB was already allowed to wear BBTC singlet during the 6 month waiting period that expires June 28th provided he doesn't sign within anyone during the 6 month waiting period. In other words, Nike got what it already had under its previous contract with BB, i.e. BB wearing BBTC singlet and not signing with another shoe company. If someone can find the Judge's Order and post it that would clarify things further.
http://www.ocregister.com/articles/berian-718603-nike-contract.html
Here is our article on the temporary restraining order being granted to Nike. We'll update it when the filing is made official:
http://www.letsrun.com/news/2016/06/nike-granted-temporary-restraining-order-lawsuit-boris-berian/
Can someone correct my understanding?
Nike can match NB's offer. Then Berian can say no thanks its me not you *cough* and sign with NB anyway?
I thought after Nike let Meb go, who in turn kicked as much f*ing ass as ass can be kicked with the rest of his career with sketchers we all decided that what shoe brand you wear doesn't matter. Plus that Nike is dumb.
I'm surprised they didn't go into this much hurrah over failing to resign Stephen Curry.
I really hope its all the same guy in these cases. Like the "I'll make it up to you on the next one" kind of guy.
Saladbar lackey wrote:
Can someone correct my understanding?
Nike can match NB's offer. Then Berian can say no thanks its me not you *cough* and sign with NB anyway?
No. IF Nike matches the NB offer, then Berian must stay with Nike.
The entire crux of the issue is whether or not Nike truly 'matched' the NB offer.
Saladbar lackey wrote:
Can someone correct my understanding?
Nike can match NB's offer. Then Berian can say no thanks its me not you *cough* and sign with NB anyway?
Not correct.
If Nike matches the offer. Then the new contract is with Nike.
If Nike Fails to match the offer.....then that's the question. Does that mean the contract with Nike is over...I don't think so. I think it means that Boris still can't sign with anyone until after 180 days.
If NB or anyone else comes back with a new offer. Nike gets a chance to Match.
The right to match isn't limited to once.