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

Kes$ha is like you go girl.

Who pays this lawyer?

Berian?

Will his $125k disappear or does Hawi chip in?

Foda pooda wrote:

Nike had to match the contract terms they were given.

Let's say Nike's standard boilerplate included language that read, "If the athlete doesn't run a PR within 365 days of signing this contract, Nike reserves the right to slowly torture and then kill the athlete." Let's also say NB's standard boilerplate doesn't include that language, but also doesn't mention a set-a-PR/torture-and-death timeline at all.

Is it Hawi/Boris's job to explicitly exclude that set-a-PR/torture-and-death timeline clause while negotiating with NB who doesn't have that clause? Or is it their job to negotiate the best possible terms with NB, then give Nike (per Nike's right of first refusal) the right to match the negotiated terms, then, upon reading the full long-form contract from Nike, identify anything in Nike's long-form contract that is materially worse for Boris than NB's boilerplate (the set-a-PR/torture-and-death timeline clause) and to then notify Nike that unless it removes that portion of the boilerplate language they will not have matched all material element's of NB's offer? To me, logically, it's the latter and not the former. Otherwise it would make sense for Nike to include very punitive language in their boilerplate and then hide behind the "boilerplate" defense.

(This all operates on the assumption that the reduction clause is not either in NB's standard boilerplate or in Boris/Hawi's long-form contract with NB.)

The example is ridiculous because no one would enforce that term for various reasons.

We are taking about two issues here - the standard language and the materiality of that language.

The NB offer sheet was silent on the issue of reductions (Nike couldn't take Hawi's word for it because it wasn't from New Balance and they had to match New Balance's offer sheet ; not simply any term Hawi mentioned in an email because they had know way of knowing if it was truly part of the offer from NB) Also, the no reduction clause my have been negotiated after or might have been pending further negotiation.

So as was stated Nike matched what was in the NB offer. the NB offer, as presented to Nike had no reductions. Now if it comes out that the NB contract had no reductions and the Nike did, well they clearly don't match, but that might be not matter....jsut might.

I don't think that the reductions clause as immaterial to Boris. In fact, it is so material it might have been the difference to swing Boris to NB (in theory) However, if it was material it was never mentioned in the NB offer sheet (here is where HAWI failed to do his job as an agent.) it wasn't enough to just tell Nike there were no reductions in an email. He had to make sure the NB offer sheet spelled that out if it was material and if NB's offer did in fact have no reductions.

So nike could argue that because hawi didn't include it it wasn't material to the NB offer or in the alternative it wasn't part of the NB's initial offer and therefore Nike matched the offer.

Boris will try to say it was material and was part of the NB's offer and by Nike failed to include a no reductions clause didn't match the offer and he's free.

One posible outcome is that the court sides with Nike, but says that the new contract has to have a No Reductions clause, but I doubt it because that would then suggest that Nike didn't match at all.

Could be interesting.

NoAGPLI wrote:

8FE wrote:

Berian is a greedy. (Not an idiot).

This is what happens when you don't have an education and end up in McDonald's.

Or sign with the WORST agent in the business! Hawi is terrible

Fixed it for you.

The dude just had to go without a contract for 6 months - find an endorser that did provide shoes or clothes, take a loan out - and then when the contracted 6 month interlude (from previous contract) expired sign-on with NB.

But instead he got greedy and gave Nike a small window to go after him.

Good luck. Patience, grasshopper.

Just saying dude wrote:

NoAGPLI wrote:

Or sign with the WORST agent in the business! Hawi is terrible

Fixed it for you.

The dude just had to go without a contract for 6 months - find an endorser that does not provide shoes or clothes, or take a loan out - and then when the contracted 6 month interlude (between sponsors - from previous contract) expired then sign-on with NB.

But instead he got greedy and gave Nike a small window to go after him.

Good luck. Patience, grasshopper.

Fixed a few errors, my bad.

Just saying dude wrote:

The dude just had to go without a contract for 6 months...

Not in the case where a contract match was not made. Oops, Nike.

It seems strange that a contract would have to explicitly say what it doesn't have, that being a no-reductions clause. It should be clear there were no reductions by the fact that there were no reductions.

Hippo wrote:

It seems strange that a contract would have to explicitly say what it doesn't have, that being a no-reductions clause. It should be clear there were no reductions by the fact that there were no reductions.

It's a bit confusing, I'll admit, but here's how it breaks down:

- New Balance offers Boris A, B, and C.

- Boris' agent presents this offer to Nike.

- Nike matches A, B, and C in their contract, which also includes D (the reduction clause)

- Boris' agent say "New Balance's contract doesn't have D, so get stuffed Nike."

- Nike says, "Wait a minute, we were only presented with A, B, and C in the offer sheet presented from New Balance via Boris' agent. We matched that ish." Nike can't match something that isn't presented to them officially; an e-mail from the agent saying, "No, it's cool," won't suffice.

- Nike files suit, and here we are.

So that's it. Nike believed they matched simply because they included A, B, and C. Boris and his agent believe it's not a match because of D.

a legal pelican wrote:

So that's it. Nike believed they matched simply because they included A, B, and C. Boris and his agent believe it's not a match because of D.

But D cause the value of A, B and C to be lower.

The question then was Nike given the option to wave D or not? I am sure there is some case law about similiar things that will pop up.

The interesting part is the companies going to court over peanuts. Even if Berian becomes an olympic champion, world champion, and world record holder, we are still talking peanuts both in amounts paid out AND endorsement potential. Not really sure what a winning end game is (intimidate future athletes? get a legal prescient set for more valuable athletes (i.e. Stephan Curry level talents)) for nike or Boris (shouldn't this have all been worked out in private).

Must have chapped Nike's ass winning at Pre rocking the New Balance gear. LOL.

Booed buddy wrote:

We are taking about two issues here - the standard language and the materiality of that language.

The NB offer sheet was silent on the issue of reductions (Nike couldn't take Hawi's word for it because it wasn't from New Balance and they had to match New Balance's offer sheet ; not simply any term Hawi mentioned in an email because they had know way of knowing if it was truly part of the offer from NB) Also, the no reduction clause my have been negotiated after or might have been pending further negotiation.

My primary point is that Nike can't assume that its boilerplate is everyone's boilerplate. But you're right that if the issue of contention (a reduction clause) isn't in NB's boilerplate, it was Hawi's job to show it to Nike (and now it's the lawyer's job to show it to the court).

And we both agree that if there's a difference in the reduction clause (or one company has it and the other doesn't) it's definitely material. It makes a financial difference for Berian, and any reasonable court would see that.

Because D wrote:

a legal pelican wrote:

So that's it. Nike believed they matched simply because they included A, B, and C. Boris and his agent believe it's not a match because of D.

But D cause the value of A, B and C to be lower.

Yes, for the SAME performance by Berian, if Nike included a 25% reduction clause, Berian would make a GUARANTEED $375,000 with New Balance but only $281,250 from NIke -- $93,750 less for the same performance if he failed to meet Nike performance standards. D causes A, B, and C to be significantly less.

If Hawi showed the New Balance term sheet to Nike, then Nike will lose. If he didn't show it to them, then the case boils down to whether he was obligated to explain to Nike why a competing contract was better and then give Nike a chance to match all aspects of it.

Who pays this lawyer?

Berian?

Will his $125k disappear or does Hawi chip in?

I would fully expect Hawi to cover the cost of litigation. Any agent worth their salt will protect a client from actions they the agent engaged in. If an agent were to tell a destitute client "sorry I can't help you with the legal fees" his career as an agent would be finished. If Hawi and Berian win the case, Nike will have to pay their legal expenses. If Nike wins and Hawi was negligent, then Hawi's career as a agent is finished, his name will be mud.

Also, the lawyer could agree to take the case on the contingency he will win the case and if he loses he can declare he worked pro-bono which he may be able to add to his tax deductions. Any sharp lawyer wanting to make a reputation in sports litigation would jump at the chance to try this case.

From my understanding, Nike did not fully match the offer put forward by Brooks, so they defaulted on their end of the deal.

Surely this is an open and shut case? Matching an offer is exactly that, not just making it seem mostly the same but adding some extra clauses that are not in the other parties favour?

For all intents and purposes, Nike set up their offer so that they would pay less than Brooks given some potential circumstances. That is not matching an offer. It should be the same to the letter.

This contract exposes how stupid anyone that signs a contract with Nike is.

Nike is super smart and exploits the fact that athletes think they are never going to get hurt, sick, or have a dip in performance.

They also realize that most ignorant athletes think that signing with Nike is a big deal. IT IS NOT. Signing with Nike means you are ignorant.

I will forever view Nike Track and Field athletes as the dumbest in the field.

With what we know so far, Nike really comes off as not being supportive and friendly to an athlete at all.

1 - they offer a peanuts contract (gear, traveling costs maybe, and maybe a small stipend) to a potential rising star for a short amount of time. The athlete has nothing to begin with so is very grateful to have something. Initially it seems like Nike is your friend, however . . .

2 - the contract expires after a very short initial period of time. The athlete may have had some success and that success may have shown favorably on Nike but now Nike doesn't have to do anything because they've built in the right of first refusal clause. Nike can now offer nothing, renew the contract at existing terms, or they can offer a small bump with maybe incentives that are not guaranteed in the hopes that the athlete that started with nothing sees this as additional support. Unless the athlete seeks competing offers on his own, there is no incentive for Nike to negotiate further.

3 - the athlete does receive a competing offer but is forced to bring it to Nike for them o decide if they would like to match. During this contractually allowed time for the decision to take place the athlete is unsponsored and receiving nothing.

4 - Nike claims to match the offer's base salary but includes conditions that will reduce said base salary unless certain performance measures are met. Another way of looking at such a clause is that they are offering a reduced base salary and they put a ceiling on how much can be earned after meeting the stated mandatory performance goals.

5 - when the athlete claims that Nike has not matched the competing offer or simply chooses to accept the "equal" competing offer from another sponsor, Nike sues the athlete, prevents the athlete from being sponsored by anyone else or competing in any other gear but Nike while the athlete remains unsponsored.

I'm just a layman but with what we know so far, I don't see how Nike can think that they've "matched" Boris's offer from NB or how Nike believes it will benefit by having its one-sided negotiation tactics exposed.