I really hate to ask this, but how long have you been practicing law?
It would be ruinous for Boris to get into discovery battles, confidentiality disputes, and extensive summary judgment briefing. He needs to get this case booted fast, at least insofar as it involves requests for TROs and preliminary injunctions.
I quickly read through Boris's response. I really don't understand why his lawyers aren't focusing more on the standards for obtaining injunctive relief, specifically TROs and preliminary injunctions. In addition to the requirement to show likelihood of success on the merits, Nike needs to meet a number of equitable requirements regarding, among other things, irreparable harm and interests of the public. These are not typically easy standards to meet, especially when dealing with athletes whose livelihoods depend largely on how they perform once every four years.
The reduction clause issue seems very odd to me. My initial reaction is that a reduction clause would be a highly material term that could not be inferred by silence, which leaves me skeptical of Nike's position.
I've been involved in too many of these David versus Goliath legal disputes. They sicken me. In my field of appellate practice, one really good lawyer can crush an army of big-firm drones, but this kind of case requires some deft lawyering for the little guy. I'm rooting for Boris, but I'd like to see some analysis that gives me a little more comfort and confidence.