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 Nikeâ€™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:
(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 partiesâ€™ relative access to relevant information, the partiesâ€™ 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 Nikeâ€™s possession or control are relevant to both Nikeâ€™s claims as well as Berianâ€™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 attorneysâ€™ 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, Berianâ€™s defense would have access to it and it can significantly affect settlement discussions.