Untouched today was whether Boris can sit out 6 months even if it's an agreed match.
Why are you focusing on this? It makes no sense. it was a match there was a contract, end of story. The contract was for 3 years.
Berian signed a contract with Nike in 2015 with right of first refusal.
Nike agreed to match NB contract in 2016. This essentially creates a new contract. Berian does not have to sign contract. Contract is not finalized until Berian signs the new 2016 contract. Therefore Nike and Berian are not under contract and thus the 180 days is still relevant.
By signing a contract in 2015 with a ROFR clause does not automatically put your signature on a brand new contract in 2016.
It doesn't matter if Merhawi told them there were no reductions. He could have told them NB were also throwing in a puppy and warm hugs. Berian's original Nike contract from 2015 stipulated that any offer from a third party would have to be submitted on company letterhead. Merhawi failed to do that, but Nike asked him to do so, and Merhawi complied.
Nike then informed Merhawi that they would match the NB offer, but that it didn't mention anything about reductions, so they wanted clarification on that too, but that they intended to match regardless. Merhawi never provided that (maybe he mentioned it in the conference call, but again, that all has to come on NB letterhead). He obviously could have gotten that from NB, since NB testified under oath that the deal had no reductions.
So why didn't Merhawi get NB to provide that? It's fairly obvious that, because Berian didn't want to be with Nike, Merhawi knew that providing such documentation would mean that Nike would fully match, and it would be over.
So why did Nike later send the full contract that did include reductions? I'm not sure, but I'd guess it was a means to force the issue, since it was apparent that Berian had no intention of giving in, and it seemed as if the communication dried up. I'm no Nike fan, and can't understand why they'd go to such lengths to keep an athlete who doesn't want to run for them, but if you look at it from their perspective, you can see how they would feel Merhawi didn't deal with them in good faith.
Man, that judge looks corrupt as hell. The ones with the smiles on their faces all the time are usually the worse. He must be smiling about the briefcase stuffed with Franklins he received from Nike at some shady restaurant.
If it was a slam dunk case in anyone's favor the judge wouldn't have waited another week.
This is not true. It means it's not a slam dunk in nike's favor otherwise he would have not lifted the restraining order. The reason it takes that long is because you have to write an opinion and he decided he needed to write a full opinion rather just a decision with an opinion later to come.
Although I agree that this seems to be at the center of the dispute, it's not at all clear to me that Merhawi was required to provide Nike with a "No Reductions" clause or statement on New Balance letterhead.
The right-of-first-refusal clause in Boris's 2015 contract required Boris to provide the "specific terms" of the third-party contract. If there were no "specific terms" in the New Balance contract about reductions, and Merhawi (on January 19, I believe) told Nike that the New Balance contract did not include any reductions, I don't see why he would be required to resend the offer with an express "No Reductions" clause on New Balance letterhead. (If, however, the New Balance contract specifically stated that there were no reductions, my conclusion would likely be different.) I don't believe that complete silence on the subject of reductions would constitute a "specific term" of the New Balance contract, and Nike's reliance on questionable concepts like "industry standard" reduction clauses (which became "relatively common" reduction clauses when Nike's attorney referred to them at oral argument on the motion for preliminary injunction) is unpersuasive to me.
Both sides were less than forthcoming during the discussions. Merhawi probably could have provided a "no reductions" statement on New Balance letterhead. Nike could have said, within the relevant time period, that it agreed to match New Balance's offer with no reductions, and could perhaps insist at some later point for proof to back up Merhawi's assertion that the New Balance offer included no reductions. Both sides were taking some risks to get what they wanted -- Merhawi wanted no matching offer from Nike, which wanted a contract with numerous reductions if Boris's promising but far from certain career didn't quite pan out.
I understand that one can argue that Merhawi violated the contractual covenant of good faith and fair dealing, but I don't believe that would be a correct interpretation of the implied covenant or its application here; I think that Nike's lengthy list of reductions in an allegedly matching offer is more illustrative of a breach of the implied covenant. All in all, I'm somewhat inclined to believe that Merhawi simply got the better of Nike, and I believe that the legal proceedings will play out reasonably well for Boris from this point forward. Whether things will play out well on the track is another matter; this legal dispute with Nike has surely been a distraction. It has probably also been a substantial expense for Boris, and I'm not aware of any "Attorney Fees" or "Prevailing Party" provision in his contract with Nike that will allow him to shift legal fees and costs to Nike.
No celebrating yet, but today's outcome does not appear good for Nike. The Judge stating he believes he knows what he wants to do, and then stating the TRO is expired suggests Nike is unlikely to get their Preliminary Injunction. Under FRCP 65(b), the judge could have extended the TRO if Nike had shown good cause - apparently they did not. It makes no sense for the judge to allow the TRO to expire if he is just going to order essentially the same thing in an injunction in a week. If he did that, he would just be creating a week long window for Berian to to what he wants, and then shutting him down again. Of course, the judge can change his mind, but right now I do not think Nike is going to get their injunction when the judge issues his ruling.
8/10. I agree with 2discover's assessment. Also, the timing of the ruling, to be issued on June 29 with the Oly Trials 800m starting 2 days later on July 1, leaves no time for appeal. While this lack of opportunity to appeal would be unfair to Berian, the court could view that Nike's lack of opportunity to appeal was of its own making. Nike decided to file this motion very late in the calendar, with Trials approaching. So the delay in the ruling indicates to me that Nike is on the losing side and Berian will next week be sartorially unregulated.
I read the transcript of the deposition with Boris. It seems like pages 33-36 are missing. I wonder why and if there was anything interesting on those pages.
Yes, I had noticed that, too. It appears that Nike specifically left those pages out of the exhibit attached to its reply in support of the motion for preliminary injunction. Courts generally encourage parties to include only the pertinent pages of a deposition, so Nike could conceivably argue that those pages provided no pertinent information (or, alternatively, that Nike's legal team simply left out the pages by mistake), but when I see an exhibit that includes the great majority of pages from a deposition, while leaving out pages that would seem likely to relate to key issues, I tend to assume that the lawyers are intentionally omitting pages that contain unfavorable information. I often see this kind of practice when lawyers submit records on appeal. From my perspective, it doesn't come off well.
Also, the timing of the ruling, to be issued on June 29 with the Oly Trials 800m starting 2 days later on July 1, leaves no time for appeal. While this lack of opportunity to appeal would be unfair to Berian, the court could view that Nike's lack of opportunity to appeal was of its own making. Nike decided to file this motion very late in the calendar, with Trials approaching. So the delay in the ruling indicates to me that Nike is on the losing side and Berian will next week be sartorially unregulated.
I agree. The judge had earlier acknowledged the possibility and timing of an appeal of his decision to grant or deny the preliminary injunction, but delaying the issuance of an appealable order until next Wednesday effectively rules out any action by the Ninth Circuit before the trials. I don't think he'd do that to Boris, and Nike has little basis for claiming any significant prejudice if Boris is allowed to run in a competitor's shoes during the trials. Also, if Boris fails to make the Olympic team, I have some doubt about whether Nike will appeal the denial of a preliminary injunction, because I think they'll see Boris as damaged goods.