Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 21

Blackmon v. Iverson
United States District Court, Eastern District of Pennsylvania, 2003. 324 F.Supp.2d 602.
McLAUGHLIN, District Judge.
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* * * [Jamil] Blackmon met [Allen] Iverson and his family in 1987. At that time, Mr. Iverson was a young high school student who showed tremendous promise as an athlete.* * * At various times in their friendship, Mr. Blackmon provided Mr. Iverson and his family with financial support * * * and provided other support to Mr. Iverson * * *.
In July of 1994, Mr. Blackmon suggested that Mr. Iverson use "The Answer" as a nickname in the summer league basketball tournaments in which Mr. Iverson would be playing. Mr. Blackmon told Mr. Iverson that Mr. Iverson would be "The Answer" to all of the National Basketball Association's ("NBA's") woes. Mr. Blackmon and Mr. Iverson also discussed the fact that the nickname "The Answer" had immediate applications as a label, brand name, or other type of marketing slogan for use in connection with clothing, sports apparel, and sneakers. The parties also discussed using "The Answer" as a logo.
Later that evening, Mr. Iverson promised to give Mr. Blackmon twenty-five percent of all proceeds [from] the merchandising of products sold in connection with the term "The Answer." * * *
Mr. Blackmon thereafter began to invest significant time, money, and effort in the refinement of the concept of "The Answer." * * *
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In 1996, just prior to the NBA draft, during which Mr. Iverson was drafted by the Philadelphia 76ers, Mr. Iverson advised Mr. Blackmon that Mr. Iverson intended to use the phrase "The Answer" in connection with a contract with Reebok for merchandising of athletic shoes and sports apparel. * * *
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Many months later, Reebok began manufacturing, marketing, and selling a line of athletic sportswear and sneakers using and incorporating "The Answer" slogan and logo.* * *
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* * * [D]uring the 1997-1998 season, Mr. Iverson persuaded Mr. Blackmon to relocate to Philadelphia * * *.
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Reebok has continued to sell products bearing "The Answer" slogan and Mr. Iverson has continued to receive profits from the sale of products bearing "The Answer" slogan. Despite repeated requests and demands from Mr. Blackmon, Mr. Iverson has never compensated Mr. Blackmon
* * * [with] proceeds from the merchandising of [these] products * * *.
[Blackmon filed a suit in a federal district court against Iverson, alleging, among other things, breach of contract.] * * * [T]he plaintiff conceded that his graphics were not incorporated into any of Reebok's products * * *.
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The plaintiff claims that he entered into an express contract with the defendant pursuant to which he was to receive twenty-five percent of the proceeds that the defendant received from marketing products with "The Answer" on them. The defendant [filed a motion to dismiss] * * *.
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Under [the] law, a plaintiff must present clear and precise evidence of an agreement in which both parties manifested an intent to be bound, for which both parties gave consideration, and which contains sufficiently definite terms. [Emphasis added.]
Consideration confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance, or return promise bargained for and given in exchange for the original promise. Under [the] law, past consideration is insufficient to support a subsequent promise. [Emphasis added.]
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The plaintiff has argued that, in exchange for the defendant's promise to pay the twenty-five percent, the plaintiff gave three things as consideration: (1) the plaintiff's idea to use "The Answer" as a nickname to sell athletic apparel; (2) the plaintiff's assistance to and relationship with the defendant and his family; and (3) the plaintiff's move to Philadelphia.
According to the facts alleged by the plaintiff, he made the suggestion that the defendant use "The Answer" as a nickname and for product merchandising one evening in 1994. This was before the defendant first promised to pay; according to the plaintiff, the promise to pay was made later that evening. The disclosure of the idea also occurred before the defendant told the plaintiff that he was going to use the idea in connection with the Reebok contract in 1996, and before the sales of goods bearing "The Answer" actually began in 1997.
Regardless of whether the contract was formed in 1994, 1996, or 1997, the disclosure of "The Answer" idea had already occurred and was, therefore, past consideration insufficient to create a binding contract.
* * * *
According to the complaint, the plaintiff's relationship and support for the defendant,* * * began in 1987, seven years before the first alleged promise to pay was made. There is no allegation that the plaintiff began engaging in this conduct because of any promise by the defendant, or that the plaintiff continued his gratuitous conduct in 1994, 1996, or 1997 in exchange for the promise to pay. These actions are not valid consideration.
The plaintiff also alleged at oral argument that his move to Philadelphia during the 1997-1998 season was consideration for the promise to pay. If the parties reached a mutual agreement in 1994, the plaintiff has not properly alleged that the move was consideration * * *.
Nor is there any allegation that the move was part of the terms of any contract created in 1996 or 1997. The complaint states only that the defendant "persuaded" him to move to Philadelphia to "begin seeking the profits from his ideas." Even when the complaint is construed broadly, there is no allegation that the move was required in exchange for any promise by the defendant to pay. In the absence of valid consideration, the plaintiff has no claim for breach of an express contract.
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* * * IT IS HEREBY ORDERED that the [defendant's] motion is GRANTED and the plaintiff's * * * complaint is DISMISSED * * *.
1. What might Blackmon have done to secure payment for Iverson's use of "The Answer" as a nickname before that use became valuable
2. Suppose that only five minutes had elapsed between Blackmon's suggestion that Iverson use "The Answer" as a marketing slogan and Iverson's promise to give Blackmon a part of the proceeds. Would the ruling in this case have been any different Why or why not