Boris Berian forced to scratch out of the rest of my races, maybe even the trials

Wrong Les wrote:

Les wrote:

Ok you are wrong. The very point of the Nike v. Berian lawsuit is to determine whether Nike and Berian HAVE a valid contract. Until this is determined by the courts or a private settlement, there is no agreement.

Ahem, only signed contracts are valid.

Yet both will land you in court generating legal bills that an athlete probably cannot afford. This is what happens when you say no to the head of the sport.

BB is the perfect litigation target. He's underfunded.

pop_pop!_v2.2.1 wrote:

Wrong Les wrote:

Ahem, only signed contracts are valid.

Yet both will land you in court generating legal bills that an athlete probably cannot afford. This is what happens when you say no to the head of the sport.

BB is the perfect litigation target. He's underfunded.

...and he is employed by the evil competitor.

darkwave wrote:

They say that they had the right to match NB's offer. NB's offer didn't include a clause reducing Berian's compensation if he failed to perform, and didn't mention the issue one way or another. Nike matched the terms that were explicitly covered in the NB contract, but also included a reductions clause.

Thanks, darkwave.

Wrong Les wrote:

Les wrote:

Ok you are wrong. The very point of the Nike v. Berian lawsuit is to determine whether Nike and Berian HAVE a valid contract. Until this is determined by the courts or a private settlement, there is no agreement.

Ahem, only signed contracts are valid.

If that were true, Nike would have no grounds for the lawsuit/temporary injunction. It's very much a gray area. Also, oral agreements can and have been found to be binding.

Les wrote:

Wrong Les wrote:

Ahem, only signed contracts are valid.

If that were true, Nike would have no grounds for the lawsuit/temporary injunction. It's very much a gray area. Also, oral agreements can and have been found to be binding.

What oral agreement? There was none.

Wrong Les wrote:

[quote]Les wrote:

[

What oral agreement? There was none.

Yup - nobody's arguing about an oral agreement between Berian and Nike. Just either 1 or 2 contracts. An oral agreement was at issue in one of the cases that Nike cites to as support for their argument (the Culpeoper case)

Everybody agrees that NIke and Berian HAD a contract, and that contract included Nike's right to match any competitor's offer.

Nike says that they matched NB's offer, and so Berian is still under contract to them, and bound by the contract they offered him this year. Berian, of course, didn't sign that contract, and maintains that Nike did NOT match NB's offer, and so he properly signed with NB.

BTW, I'd be fairly certain that NB is contributing to Berian's legal costs here. They have a strong interest in having their contract with him upheld, and having him compete wearing their gear.

Whether there is a valid contract is not clear. Nike says there is a valid contract. Berian's lawyer in California says there isn't. Without the underlying documents being made public, those of us on the outside can't say whether Nike matched the NB offer and actually has a valid contract to enforce or not.

What is thuggish is that Nike is a multi-billion dollar company trying to crush a guy with a lawsuit he probably can't afford to defend. Whether Nike really has a case or not could be a moot point if Berian can't come up with tens of thousands of dollars to fight the case. Nike sued Berian in Oregon, although he lives in California. Just the cost to Berian to hire attorneys to defend him in Oregon could be more than Nike is paying him in a year

Instead of training and preparing for the US trials, Berian will have to deal with lawyers, depositions, and probably travel to Oregon to testify in an injunction hearing, plus the stress and distraction of litigation. This could very well wreck his season and his best opportunity for making the Olympics. On the other hand, whatever Nike says in its TRO brief, there is no significant financial harm to Nike if Berian wears NB at the trials or wears NB shoes at the Olympics. The only practical effect of the lawsuit is for Nike to make an example of Berian by crushing him in an Olympic year for not taking whatever Nike offered him.

Wrong Les wrote:

Ahem, only signed contracts are valid.

Taking issue with the "signed contracts" bit. Agreements do not have to be on paper or signed to be valid, i.e. oral agreements. Harder to prove than signed contracts, certainly.

darkwave wrote:

Nike says that they matched NB's offer, and so Berian is still under contract to them, and bound by the contract they offered him this year.

Except it wasn't a match. AND Nike would not pay out a dime without a signed contract.

Les wrote:

Wrong Les wrote:

Ahem, only signed contracts are valid.

Taking issue with the "signed contracts" bit. Agreements do not have to be on paper or signed to be valid, i.e. oral agreements. Harder to prove than signed contracts, certainly.

Where is this "oral" agreement? When there is a written contract offered--as was this case--an oral agreement is not applicable.

oral contract: an agreement made with spoken words and either no writing or only partially written.

wow. that's some A+ horsesh*t. poor guy

i hate nike and am glad their shoes don't fit my wide feet, because they are really a horsesh*t company goign after a feel-good running story.

a holes. put your pride away

Wrong Les wrote:

darkwave wrote:

Nike says that they matched NB's offer, and so Berian is still under contract to them, and bound by the contract they offered him this year.

Except it wasn't a match. AND Nike would not pay out a dime without a signed contract.

Exactly - that's what the argument hinges on - was their offer a match or not?

Also worth noting that Nike claims they tried to wire money to Berian twice, but he rejected it. Interestingly, they don't note in the brief WHEN they tried to wire it. Was it in January, when they sent him their offer? Or just before they filed this suit, as support?

darkwave wrote:

Berian, of course, didn't sign that contract, and maintains that Nike did NOT match NB's offer, and so he properly signed with NB.

Not true. Berian says he hasn't signed with NB. And, if you read Nike's motion, they accept that and attempt to turn that fact in their favor. Nike argues that, if Berian really believed Nike hadn't matched NB's offer, then he would genuinely believe himself free to sign with NB and would have done so. But he hasn't.

I've thought all along that Berian's best argument may be that there was never a bona fide offer from NB to him in the first place; not that there was such an offer that NIke failed to match.

Hope we'll get to see what Berian's attorney says in opposition to Nike's motion.

one to go wrote:

darkwave wrote:

Berian, of course, didn't sign that contract, and maintains that Nike did NOT match NB's offer, and so he properly signed with NB.

Not true. Berian says he hasn't signed with NB. And, if you read Nike's motion, they accept that and attempt to turn that fact in their favor. Nike argues that, if Berian really believed Nike hadn't matched NB's offer, then he would genuinely believe himself free to sign with NB and would have done so. But he hasn't.

I've thought all along that Berian's best argument may be that there was never a bona fide offer from NB to him in the first place; not that there was such an offer that NIke failed to match.

Hope we'll get to see what Berian's attorney says in opposition to Nike's motion.

ah...totally missed that. I thought he had a non-public agreement with NB?

darkwave wrote:

Also worth noting that Nike claims they tried to wire money to Berian twice, but he rejected it. Interestingly, they don't note in the brief WHEN they tried to wire it. Was it in January, when they sent him their offer? Or just before they filed this suit, as support?

In Nike's complaint, it claimed to have wired money to Berian (or his agent) on April 12, 2016. The complaint did not mention the rejection, nor a second wiring attempt.

I was not referring to Berian or his case. Just the statement about only signed contracts being valid.

Except that apparently Berian's agent forwarded an offer from NB to Nike as was required by Berian's Nike contract so they could have an opportunity to match. Obviously Berian's agent can't forward an offer from NB and then later say the very offer he forwarded isn't an offer.

darkwave wrote:

ah...totally missed that. I thought he had a non-public agreement with NB?

No evidence of that. Berian has denied having any endorsement contract with NB on his twitter and, as mentioned, Nike has now accepted that in its papers.

Nike's contention is that Berian's wearing clothes with the NB logo is in itself an enjoinable "endorsement" regardless of the absence of a contract with NB.

Les wrote:

Except that apparently Berian's agent forwarded an offer from NB to Nike as was required by Berian's Nike contract so they could have an opportunity to match. Obviously Berian's agent can't forward an offer from NB and then later say the very offer he forwarded isn't an offer.

There may be a distinction to be made between negotiating talking points and bona fide (and matchable) offer.

If Berian's attorney doesn't make that argument in response, then I will agree its a non-starter.