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.
It killed me! They just started to get into the difference between term sheet and contract, which I've be asking around about and haven't gotten much response.
The end of page 32 reads:
15 Q Okay. All right. Now, this attachment to
16 the e-mail, which is titled "Boris Berian Offer
17 Compensation and Bonus Schedule," this is not an
18 actual sponsorship contract, is it?
19 A What do you mean?
20 Q Well, it does not include some of the terms
21 that you would expect in a normal sponsorship
22 agreement, like provisions allowing the sponsor to
23 use your name or image, or provisions saying that
24 you would make appearances on behalf of the sponsor,
25 those kinds of provisions?
That's the end of page 32!
I want to know what the response was. I'm wondering if the New Balance contract would have any provisions like mentioned above. I wondered if he would be legally required to run at all in the new balanced contract, and still be entitled to his full base pay. If any provision, no matter how small, would be in the NB contract that wouldn't be in the term sheet, then it seems like it would put Nike in the grey area of determining what provisions they would be allowed to add, and what they consider "material." I feel like they would have to guess where the line is between material and un-material. That would change the whole discussion in my mind. NB swore that they didn't, as a standard practice, put reductions in contracts, but it didn't deny that they do put reductions in contracts. This makes Nike have to guess what provisions they might add. If they guess wrong, everyone is saying that its not a match, but without Nike seeing the whole contract, I feel like they can't add anything without the "No Match!" argument being thrown at them, whereas NB can add a host a provisions, after the fact, that they (Boris? NB?) don't view as "material."
Yes Boris's camp explicitly said that "no reductions" were material, but if the contract hadn't been drawn up, how do they know there wouldn't have been any reductions? Boris' camp was also obligated to get any material terms delivered on NB letterhead. Otherwise Nike has to take Boris' agent's word for it. It just seems completely reasonable for NB to have clarified "no reductions," and given the openness of their intent to write a contract that Nike wouldn't be able to match, it just seems like this was done in bad faith.