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The folks at Nike were hoping for a motivational speech. Or at least an audio recording of one. But after shelling out $150,000, all they got were words on a page, the text of one of Vince Lombardi’s famed speeches.
Nike was planning to use the audio recording in a new advertising campaign. But without the audio, Nike instead filed suit in Oregon state court against two of Lombardi’s children and CMG Worldwide, Inc. (the firm that manages Lombardi’s publicity rights), alleging breach of contract, mutual mistake, and fraud. According to the complaint, Nike received a draft license agreement from CMG which, after review, it deemed insufficient. Nike then informed CMG that payment for the license must be contingent on the advertisement airing and that the license must extend to both the words and the voice recording. Nike claims that CMG agreed to the changes, but then sent a new license agreement that did not contain them. Nevertheless, a Nike representative signed the agreement “as he was running out the door on a personal trip.” To make matters worse, Nike agreed to pay the $150,000 licensing fee up front as a “favor” to CMG based on its “long-term relationship of trust.” And the agreement the Nike rep signed apparently made the fee nonrefundable.
CMG and the Lombardi family are not refusing to turn over the audio recording; apparently it doesn’t exist. But Nike insists that the negotiations took place under the assumption that it did and that CMG and the estate fraudulently kept its nonexistence from Nike, or, in the alternative, that it was a mistake on the part of both parties to the contract, such that Nike should get its $150,000 back.
Without any information beyond the contents of the complaint, it’s hard to analyze the merits of Nike’s claims. Perhaps CMG and the Lombardi children pulled a fast one on Nike, slipping in some favorable contract language because they knew the Nike rep was heading out of town. Or maybe they thought the negotiations were ongoing, and the updated licensing agreement was just the next step in the process. Either way, for Nike, the $150,000 fee may not be worth litigating over. And as it turns out, Nike may find use for the text of the Lombardi speech after all. Robert De Niro has reportedly signed on with ESPN Films to play the coach in an upcoming film titled, Lombardi. As far as the commercial goes, for my money, it doesn’t get much better than Mox’s rousing pep talk at the end of Varsity Blues. I’m sure James Van Der Beek would be open to a reenactment. Or Tim Tebow. But I digress.
It’s clear that, regardless of how this lawsuit turns out, before entering into a contract with someone to exchange money for something, you should probably verify to a certainty that the “something” actually exists. And the Nike rep whose personal trip just couldn’t wait should probably, you know, read the next contract he signs on behalf of the company (if he still has a job). Coach Lombardi would never have put up with such a sloppy performance.
– Mark Donnell
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