Berian & his agent Keflezighi screwed up, Nike is going to win the lawsuit

Nike also used its discovery to turn up some faintly damning communication within Berian's side:

"Moreover, until he retained counsel in April, Defendant never informed Nike that he believed it failed to match the New Balance Offer. In fact, Defendant treated the January 22 letter as a match of the New Balance Offer. After receiving Nike’s letter on the afternoon of January 22, Mr. Keflezighi texted Mr. Evans of New Balance: 'I just got an email from Nike. It looks like they want to match the offer.'"

So in other words, nike was to give as little as it possibly could with hopes and sub-language that could cause deductions of getting a star athlete for as little as $6,000. Sponsorship are to be mutually beneficial but the heavily maligned contract favored nike. New Balance cared more as their contract proved.

Any athlete to sign with nike is a fool.

That is Nike's claim. That doesn't make it fact. Let's see what Berian's response is to Nike's claim. Perhaps Berian and Keflezghi screwed this up, perhaps not. It can be argued since there were no reductions listed in the New Balance offer sheet sent to Nike, Nike should have known there were no reductions in the proposed contract. Nike mistakenly assumed there would be reductions in the contract and if no there weren't any, that would be explicitly spelled out in the offer sheet. I don't see why New Balance would need to send an offer sheet saying there are no reduction clauses when none are listed in the proposed contract. If the terms aren't listed in the contract, you don't need to explicitly state they aren't in the contract. If the terms aren't in the contract, they don't apply.

The sworn declarations from New Balance and others regarding reductions were to counter Nike's claim that reductions are a standard industry practice.

Nike can claim they conspired to sign only with New Balance. Perhaps that is true. But again, just because Nike claims it, doesn't make it true. When all the facts are out it can be reasonably seen if Berian/Keflezghi screwed up or if Nike is trying to bully them. Premature judgments which could be wrong, can make one look foolish.

wait what? Berian is required to list every reduction that is NOT in the New Balance contract in order for Nike to match? How is that even possible?

sdmiler wrote:

That is Nike's claim. That doesn't make it fact. Let's see what Berian's response is to Nike's claim.

Berian had nothing to do with Nike's shoving reduction clauses into their revised contract structure with Berian. There did not exist in the prior short term contract, only in the new long term version. This is a pure bait and switch on Nike's part.

huzzah!!! wrote:

wait what? Berian is required to list every reduction that is NOT in the New Balance contract in order for Nike to match? How is that even possible?

It isn't. No contract requires someone to list every possible scenario. Nike can invent new reductions, change the name to something else, and change the percentages to meet their future needs. Not even the best contracts lawyer in the world could cover every possible variation Nike could come up with.

I have one question in all of this: did Berian ever actually sign with New Balance?

Because you can't be forced to sign a contract. If Berian, having learned that Nike would actually match any offers to him, wished to simply wait out his 6 months, that is *absolutely* in his rights to do so. Anything beyond that forces this into essentially slave labor: YOU CAN'T BE FORCED TO SIGN A CONTRACT. (And yes, I hold incredibly negative views on noncompete clauses; they should not in any way be enforceable with a just government.)

Nike's earned my boycott in all of this. A couple hundred a year from that may not matter much, but they've also earned my anti-nike-evangelism.

What's going on?

This is always how right of first refusal wars pay out. One side presents the other with the offered terms 1-5 from a letter of intent or offer sheet. The other side agrees to match, but then sends a fully integrated agreement that includes additional terms 6-10. That then puts everyone in the gray area of thinking that the other has repudiated by offering additional terms or breached by walking away. Nike coulda shoulda asked Berian to present them with all material terms before presenting Berian with a fully integrated contract. Berian should have timely told Nike that the reductions did not match New Balance's deal. Nike coulda shoulda sent the fully integrated contract with a cover letter stating that its offer to match was unconditional and any terms in the contract that contradicted any New Balance terms that were unknown to Nike would be stricken. But the business guys control these communications and rarely get help from the legal department. And now you have a pissing match.

Phil Deez Nutz wrote:

So in other words, nike was to give as little as it possibly could with hopes and sub-language that could cause deductions of getting a star athlete for as little as $6,000. Sponsorship are to be mutually beneficial but the heavily maligned contract favored nike. New Balance cared more as their contract proved.

Any athlete to sign with nike is a fool.

It's called negotiating. It's how business works. You don't lead with your highest bid, you give yourself room to concede accordingly if they don't accept the offer. It's not a charity. If nike could have Lebron James for $100k, I'm sure they would.

Victorious88 wrote:

Phil Deez Nutz wrote:

So in other words, nike was to give as little as it possibly could with hopes and sub-language that could cause deductions of getting a star athlete for as little as $6,000. Sponsorship are to be mutually beneficial but the heavily maligned contract favored nike. New Balance cared more as their contract proved.

Any athlete to sign with nike is a fool.

It's called negotiating. It's how business works. You don't lead with your highest bid, you give yourself room to concede accordingly if they don't accept the offer. It's not a charity. If nike could have Lebron James for $100k, I'm sure they would.

Wrong, protracted negotiations do not apply in this situation. Nike gets one chance to match. Just imagine Nike's outrage is they did indeed match and NB upped it offer. Nike would sue NB for making a counteroffer.

It's probably rude for me to comment on other journalists work but I thought that article didn't add anything.

The fact that Merhawi said Nike was matching doesn't mean they matched. The fact that Berian and Merhawi didn't want a deal with Nike means little as well.

We were in a lawsuit ourselves. An advertiser refused to pay us. In discovery, we found emails saying basically, "Find a way get out of the letsrun.com contract." When we got to court, their lawyer openly admitted it. " "Damn right. We wanted out of the contract and now we're out of it as they did x y, z."

The fact that Merhawi and Berian wanted out of the contract is obvious. T If I was the lawyer for Berian, I would have admitted that they wanted out of the Nike deal. Don't let that fact make you look guilty. I'd say, "Yes, they didn't want to sign with Nike and don't have to as Nike didn't match."

The first question for a judge to decide is, "Did Nike match?"

Nike says it couldn't match as Merhawi didn't give them the details of the no-reductions. Merhawi counters by saying the offer sheet presented by NB didn't show any reductions so why would I give you the reductions when there were none.

rojo wrote:

Nike says it couldn't match as Merhawi didn't give them the details of the no-reductions. Merhawi counters by saying the offer sheet presented by NB didn't show any reductions so why would I give you the reductions when there were none.

Nike is claiming they can make multiple counteroffers while NB is stuck making a single offer. That won't work in their favor. It is impossible to list every unknown --what isn't there-- in a contract. There is no legal basis to do any such thing.

Nike claims reductions are industry standard, but Meb doesn't have one with Skechers and there are one or two others that don't have reductions either(I recall it being mentioned when this came out, but forgot who). So right there it can be argued that reductions are NOT a standard clause.

Also, why does Berian have to prove something that doesn't exist, doesn't exist?

Agree with rojo here.

huzzah!!! wrote:

wait what? Berian is required to list every reduction that is NOT in the New Balance contract in order for Nike to match? How is that even possible?

Not every reduction but you think they aren't material. If Hawi & Boris really wanted to avoid this it was painfully easy.

Hawi and Boris approached this like amateur hour and got burned

I've been saying this for weeks.

I'm pretty sure he did. That's why he was unsponsored at USA Indoors and at Worlds. He also said that if Nike wins the lawsuit and he is forced to wear their gear he might retire, which is really gut wrenching because of his story from McDonalds to World Champ.

Must be tough wrote:

huzzah!!! wrote:

wait what? Berian is required to list every reduction that is NOT in the New Balance contract in order for Nike to match? How is that even possible?

Not every reduction but you think they aren't material. If Hawi & Boris really wanted to avoid this it was painfully easy.

Hawi and Boris approached this like amateur hour and got burned

I've been saying this for weeks.

Hawi presented the contract that NB created. What was to be avoided. Nike responded with a contract with 12 reductions.

Nike is acting like the amateur and doesn't like losing.

Well as someone who hates Nike and supports TnF that sucks. I was hoping they were on the right side of this but it appears not. I swear it's like you can't trust any of these athletes anymore.