Antwun Echols, an individual v. Arthur Pelullo, an individual; BANNER PROM OTIONS, INC., a Delaware Corporation

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE
THIRD CIRCUIT
No. 03-2740
ANTWUN ECHOLS,
an individual
v.
ARTHUR PELULLO, an individual;
BANNER PROM OTIONS, INC.,
a Delaware Corporation,
Appellants
Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-01758)
District Court Judge:
Clarence C. Newcomer
Argued February 24, 2004
Before: RENDELL, BARRY
and ROSENN, Circuit Judges.
(Filed: July 30, 2004)
George A. Bochetto [ARGUED]
Bochetto & Lentz
1524 Locust Street
Philadelphia, PA 19102
Harry P. Marquis
112 Graces Avenue, Suite 120
Las Vegas, NV 98101
Counsel for Appellant
Robert A. Burke
Blank Rome
One Logan Square
Philadelphia, PA 19103
Lamont Jones [ARGUED]
4434 Crenshaw Boulevard
Los Angeles, CA 90043
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
A boxing promoter seeks to recover
from the District Court’s knockout punch
aimed, and delivered, at the enforceability
of its promotional agreement. Banner
Promotions, Inc. entered into a
promotional agreement with boxer Antwun
Echols, the terms of which left Echols’s
compensation for participating in bouts
secured by Banner subject to negotiation
between the two parties, and to
renegotiation under certain circumstances.
The District Court determined that the
agreement’s failure to specify minimum
compensation for Echols’s participation in
these bouts rendered it so indefinite as to
be unenforceable. For the reasons set forth
below, we will reverse.

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I.
Arthur Pelullo is the president and
owner of Banner Promotions, Inc.
(“Banner”), a company engaged in the
promotion of professional boxers and
professional boxing matches. Antwun
Echols is a professional boxer with a
current record of twenty nine wins, five
losses and one draw.
In November 1999, Echols signed a
P r o m o t i o n a l A g r e e m e n t ( “ t h e
Agreement”) with Banner, receiving a
$30,000 signing bonus. The Agreement
granted Banner “the sole and exclusive
right to secure all professional boxing
bouts requiring [Echols’s] services as a
professional boxer and to promote all such
bouts” for a term of at least four years, and
possibly longer, if certain conditions were
met. In essence, the Agreement gave
Banner the right to be Echols’s sole
representative in negotiations with any
third parties that were interested in having
Echols box on their television networks, in
their arenas, or against boxers they
represented.
Banner’s major obligation under the
Agreement was to “secure, arrange and
promote” not less than three bouts for
Echols during each year of the contract.
Banner had sole discretion to determine
the time and place of each bout. While
Echols had to approve each opponent, his
approval could not be “unreasonably
withheld.” Under Section Five of the
Agreement, Banner could satisfy its
obligation to secure a bout “if it shall have
made a bona fide offer in writing
irrespective of whether such [b]out
actually takes place for any reason other
than Banner’s nonperformance.”
Section Six of the Agreement
delineated Echols’s compensation for his
appearance in the bouts secured by
Banner:
Your purse for all bouts
covered by this agreement
shall be structured as
follows (a) non television,
not less than $7,500.00
(b) Univision, not less than
$10,000.00 (c) Telemundo,
not less that $10,000.00
(d) ESPN 2, Fox Sports or
small pay-per-view, not less
t h a n $20,00 0.00 p lu s
$ 1 0 , 0 0 0 . 0 0 t r a i n i n g
expenses. (e) HBO AFTER
DARK as a challenger or in
a non title bout, not less than
$45,000.00 plus $10,000.00
training expenses. (f) HBO
AFTER DARK as a World
Champion not less than
$ 8 0 , 0 0 0 0 . 0 0 p l u s
$ 1 0 , 0 0 0 . 0 0 t r a i n i n g
expenses. (g) HBO as a
challenger or in a non-title
b o u t , n o t l e ss t h a n
$50,000.00 plus $10,000
training expenses. (h) HBO
as a World Champion, not
less than $125,000.00 plus
$ 1 5 , 0 0 0 . 0 0 t r a i n i n g
expenses.

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Thus, Banner was to pay Echols not less
than a stated minimum amount for each
bout in which he appeared, with the
amount of the minimum depending on
where the bout was televised and whether
Echols appeared as a champion or not.
However, these “minimum purses” could
be subject to renegotiation, or the entire
Agreement cancelled, at Banner’s option,
by operation of Section Eight, which
provided that “[i]f during the course of this
Agreement Boxer should lose any bout,
Banner shall [sic] the right but not the
obligation to rescind this Agreement or the
purses set forth in paragraph (6) shall be
subject to renegotiation.”
One month after entering the
Agreem ent, Echols lost a world
championship bout to Bernard Hopkins,
triggering Section Eight. Banner chose not
to exercise its right to rescind the
Agreement, but took the position that
Echols’s compensation would thereafter be
negotiated on a bout-by-bout basis.
Indeed, the parties proceeded to negotiate
several individual bout purse agreements
in the years after the loss to Hopkins.
E c h o l s , h o w e v e r , b e c a me
dissatisfied with the situation. According
to him, Banner had made him “take it or
leave it” offers - offering him bouts for
what he believes is below-market
compensation, and then rescinding the
offers if he attempted to negotiate for a
larger purse. Because the operation of
Section Eight eliminated the minimum
purses specified in Section Six, Echols felt
that he was forced to accept Banner’s
unsatisfactory offers in order to receive
any compensation at all.
Tension also arose between the two
parties over a “step-aside” fee that Banner
negotiated on Echols’s behalf in
connection with a fight in Germany.1
E c h o l s b e l i e v e d t h a t B a n n e r
misrepresented the amount of the “step-
aside” fee, telling him that it was less than
it actually was, so that Banner could
pocket the difference.
Finally, in February 2003, Echols
requested information about the purse for
a fight on March 15 of that year. Banner
offered $30,000. When Echols made a
counter-offer, Banner responded by
rescinding the offer and stating it would
offer the March 15 fight to another boxer.
Echols filed this suit shortly thereafter.
II.
In his complaint, Echols alleged
that: (I) the Agreement was unenforceable
for indefiniteness; (II) Banner and Pelullo
breached the covenant of good faith and
fair dealing by misrepresenting the amount
1Under certain circumstances,
boxing association rules force a champion
to offer to fight the next-ranking
contender. If the champion wishes to fight
a boxer other than the next-ranking
contender, or if a boxer other than the
next-ranking contender wishes to fight the
champion, they may pay the next-ranking
contender to decline the champion’s offer
and “step aside” for another boxer. Such
a payment is known as a “step-aside” fee.

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of the “step-aside” fee; (III) Banner and
Pelullo committed fraud against him by
misrepresenting the amount of the “step-
aside” fee; (IV) Banner and Pelullo
violated the Muhammad Ali Boxing
Reform Act (“the Ali Act”), 15 U.S.C. §
6301, by misrepresenting the amount of
the “step-aside” fee; and (V) he was
entitled to a constructive trust over monies
that Banner and Pelullo owed him.
Echols also moved for injunctive
relief preventing Banner and Pelullo from
asserting their rights under the Agreement
in conjunction with a title bout that was to
take place in June 2003. The District
Court denied the motion, finding that
Echols had not established irreparable
harm.
Banner and Pelullo then moved to
dismiss the Ali Act claim, arguing that
because the Ali Act did not apply to
boxing matches fought outside the United
States and Echols had predicated his Ali
Act claim on misrepresentations relating to
a match in Germany, Echols had failed to
state a claim upon which relief could be
granted. The District Court granted the
motion.
The defendants then moved to
dismiss the remaining claims for lack of
subject matter jurisdiction, and both sides
moved for partial summary judgment to
decide the enforceability issue. The
District Court denied the motion to
dismiss, holding that the parties were
diverse and that the amount in controversy
satisfied the statutory requirement for
diversity jurisdiction. It then granted
Echols’s motion for partial summary
judgment and denied Appellants’ cross-
motion, holding that the Agreement was
unenforceable for indefiniteness, as the
Agreement contained no price term. The
parties then settled Echols’s remaining
claims, with Banner and Pelullo reserving
the right to appeal the order declaring the
Agreement unenforceable. They now
exercise that right.
III.
The District Court had subject
matter jurisdiction pursuant to 28 U.S.C. §
1332. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291. Our review
of an order granting summary judgment is
plenary. Morton Int’l, Inc. v. A.E. Staley
Mfg. Co., 343 F.3d 669, 679 (3d Cir.
2003).
IV.
A federal court exercising
diversity jurisdiction must apply the
choice of law rules of the forum state.
Klaxon Co. v. Stentor Electric Mfg. Co.,
313 U.S. 487, 497 (1941). Accordingly,
we apply Pennsylvania choice of law
rules in this case. Pennsylvania courts
g e n e r a l l y e n f o r c e c h o i c e -o f - l a w
provisions in contracts. Kruzits v.
Okuma Mach. Tool, Inc., 40 F.3d 52, 55
(3d Cir. 1994). In this case, Section
Nineteen of the Agreement provides that
it “shall be governed and construed under
the laws of the state of Delaware.” Thus,
our task is to predict how the courts of

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Delaware would resolve this issue if
presented with these facts. The District
Court, applying principles of Delaware
contract law, held that the Agreement
was unenforceable. However, we predict
that the Delaware Supreme Court would
conclude otherwise, and will accordingly
reverse.
In Delaware, as in most
jurisdictions, a court will not enforce a
contract that is indefinite in any of its
material and essential provisions. Hindes
v. Wilmington Poetry Society, 138 A.2d
501, 503 (Del. Ch. 1958). However, a
court will enforce a contract with an
indefinite provision if the provision is
not a material or essential term. Id. The
Delaware courts have not spoken on this
issue recently, nor have they ever really
focused on what types of contract
provisions are material and what types
are not, although they noted decades ago
that “[t]he general rule is that price is an
essential ingredient of every contract.”
Raisler Sprinkler Co. v. Automatic
Sprinkler Co., 171 A. 214 (Del. Super.
Ct. 1934) (citation and quotations
omitted); see also Hindes, 138 A.2d at
503 (“A provision for compensation is
certainly one of the most important
aspects of any agreement.”).
Here, the District Court held that
the operation of Section Eight of the
Agreement, which required the parties to
negotiate Echols’s compensation for
appearing in bouts secured by Banner on
a bout-by-basis after the December 1999
loss, “removed any mention of price
from the agreement.” In its view, “the
essence of the parties’ agreement after
[Echols’s] loss became a contract to enter
into a future contract.” Relying on the
Raisler Sprinkler court’s pronouncement
that “an agreement that [parties] will in
the future make such contract as they
may agree upon amounts to nothing,” the
District Court deemed the Agreement
unenforceable.
We think this conclusion of the
District Court is overly simplistic. It
would no doubt be correct if the
Agreement between Echols and Banner
were nothing more than a contract for
Echols to appear in a particular bout or
series of bouts. If that were the case,
Echols’s price for appearing in a bout
would be a material and essential term,
and, consequently, the failure to specify
the amount of that compensation or some
m e t h o d o f d e t e r m i n i n g t h a t
compensation would certainly make the
contract indefinite. However, the
Agreement does not merely deal with a
bout or a series of bouts. Rather, it
establishes the relationship between the
two parties, a relationship in which
Echols promised to fight exclusively for
Banner, and Echols desired Banner’s
services on an ongoing basis. The
consideration that Banner paid Echols to
secure this promise included a $30,000
signing bonus and a guarantee that
Banner would arrange at least three bouts
per year for him. While the purses for
these bouts were relevant, we do not
view them as so material and essential to
the understanding regard ing th e
relationship such that providing that

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certain events could alter the price would
render the contract so indefinite as to be
invalid.
This is supported by the way in
which the Agreement was intended to
function. Under Section Four, Banner
was obligated to secure three bouts for
Echols per year. Under Section Five,
Banner discharged its duty to secure a
bout “if it shall have made a bona fide
offer in writing irrespective of whether
such [b]out actually takes place for any
r e a s o n o t h e r t h a n B a n n e r ’ s
nonperformance.” Notably absent is any
requirement that Echols agree to such an
offer or that Echols must agree to such
an offer before Banner will be deemed to
have fulfilled its obligation to him. As a
result, the parties could satisfy the terms
of the Agreement without any bouts
occurring, as long as Echols continued to
deal exclusively with Banner and Banner
continued to make the required number
of bona fide offers.2 While neither party
would likely be pleased with that result,
the Agreement - with or without the
minimum purse structure in place -
clearly contemplates such an outcome.
The Agreement does not require the
parties to enter into contracts for
individual bouts, so it is not, as the
District Court posited, “a contract to
enter into a future contract.” Thus, it
need not specify the terms of those future
contracts to be enforceable.
There is a paucity of Delaware
law on point, and the pronouncements
that do exist are general in nature and
quite dated. Under Delaware law, “it is
well settled that an agreement in order to
be a legally binding agreement must be
reasonably definite and certain in its
terms.” Most Worshipful Prince Hall
Grand Lodge of Free & Accepted
Masons of Delaware v. Hiram Grand
Lodge Masonic Temple, 80 A.2d 294,
295 (Del. Ch. 1951). More recent
authorities in the area of contracts have
considered the concept of definiteness;
specifically, the Restatement (Second) of
Contracts § 33(2) provides that “[t]he
terms of a contract are reasonably certain
if they provide a basis for determining
the existence of breach and for giving an
appropriate remedy.” And, Comment e
to this section specifically acknowledges
that price terms can be indefinite in
certain situations, setting forth tests that
apply to contracts for the sale of goods,
and the rendition of services - which the
instant contract would appear to be.3 The
2The dissent opines that under our
interpretation of the contract Banner could
comply with the contract terms by making
offers for fights at any price. However,
this contention ignores the contractual
requirement that the offers be “bona fide,”
and the covenant of good faith and fair
dealing implied in contracts under
Delaware law. Cincinatti SMSA Ltd.
P’ship v. Cincinatti Bell Cellular Sys. Co.,
708 A.2d 989, 992-93 (Del. 1998).
3 Comment e, concerning Indefinite
Price, provides:
Where the parties manifest an intention not

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material and essential terms of the
Agreement here satisfy the Restatement
test. Echols breaches the contract if he
deals with some entity other than Banner;
if he were to breach in this manner,
Banner might be entitled to injunctive
relief prohibiting him from dealing with
that entity and possibly money damages.
Banner breaches the contract if it fails to
pay the signing bonus or fails to make
three bona fide offers per year; if it were
to breach in this manner, Echols might be
entitled to rescission and possibly money
damages. More importantly, there is no
breach in the event that Banner and
Echols are unable to reach an agreement
on a purse for a particular bout. And
there is no uncertainty as to what occurs
in such an event. The terms of the
Agreement are quite clear that Echols
must continue to deal only with Banner
and that Banner must continue to secure
bouts for and to promote Echols for as
long as the Agreement lasts.
While the Delaware courts have
not had the opportunity to construe an
agreement of this type, there is one case
from another jurisdiction that is clearly
on point. In Don King Prods., Inc. v.
Douglas, 742 F. Supp. 741 (S.D.N.Y.
1990), the court was confronted with a
nearly identical issue. A boxer argued
that his agreements with a promoter were
unenforceable for indefiniteness. The
promotional agreement between the two
parties provided $25,000 to the boxer in
return for the exclusive right to promote
his fights for a period of time.
Compensation for individual fights was
made subject to further negotiation and
agreement, with the terms to be set forth
in individual bout agreements. The
promotional agreement specified floor
levels of compensation for all bouts
except title bouts, where the purse was to
be “negotiated and mutually agreed upon
between [the parties].” Id. at 761.4
to be bound unless the amount of money to
be paid by one of them is fixed or agreed
and it is not fixed or agreed there is no
contract. Uniform Commercial Code § 2-
305(4). Where they intend to conclude a
contract for the sale of goods, however,
and the price is not settled, the price is a
reasonable price at the time of delivery if
(a) nothing is said as to price, or (b) the
price is to be left to be agreed by the
parties and they fail to agree, or (c) the
price is to be fixed in terms of some agreed
market or other standard as set or recorded
by a third person or agency and it is not so
set or recorded. Uniform Commercial
Code § 2-305(1). Or one party may be
given the power to fix the price within
limits set by agreement or custom or good
faith. Similar principles apply to contracts
for the rendition of services.
4The dissent correctly notes that the
parties later reached a second agreement,
but misstates the effect of that agreement.
It established that the boxer would receive
a $1.3 million purse for a title bout in
Tokyo, Japan, and $1 million per fight for
his first three post-Tokyo fights, unless he
was the winner in Tokyo, in which case
the amount per fight would be subject to

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The court found that while the
agreement left certain terms open to
future negotiation, it was more than an
agreement to agree, at least with respect
to the exclusivity terms, as it was
“explicit and definite about [the boxer’s]
commitment to fight only for [the
promoter] during the life of those
contracts and about the minimum
consideration he could receive for
making that commitment.” Id. at 762.
The fact that the agreement left open the
compensation that would be payable
under certain circumstances (i.e., title
bouts) did not affect the essential subject
matter of the agreement, as “the writing
manifests in definite language . . . the
agreement to deal exclusively with one
another with respect to title defenses and
to negotiate in an effort to reach a mutual
understanding as to the open price term
for such a defense.” Id.
Similarly, the failure to specify
Echols’s purses does not affect the
essential subject matter of the contract in
the instant case, which is the exclusive
nature of Echols’s relationship with
Banner and the services that Banner has
agreed to perform for Echols in exchange
for this exclusivity. The Agreement
clearly indicates Echols’s obligation to
deal only with Banner and Banner’s
obligation to secure a certain number of
bouts for Echols. However, nowhere
does it obligate Echols to participate in
those bouts, and, in the absence of such
an obligation, it is unnecessary for the
parties to have agreed in advance upon
purses for Echols’s participation. The
purses were not material and essential
terms, and the fact that they were left
open to future negotiation does not
render the contract unenforceable.
Other courts have enforced
agreements that we find analogous to the
one at issue here. In Mantell v. Int’l
Plastic Harmonica Corp., 55 A.2d 250
(N.J. App. 1947), a contract between a
plastic harmonica manufacturer and a
distributor did not fix a price for the
goods to be distributed. When the
manufacturer sought to have the contract
declared invalid for failure to set a price,
the court noted that the agreement was
not purely one for the sale and purchase
of goods. Instead, it was one for an
exclusive right to distribute the goods in
a certain region, and the consideration
offered by the distributor was for these
rights.
This type of contract is a comparatively
recent device to meet modern needs in
the marketing and distribution of goods
on a nation-wide or regional scale. In the
very nature of the exclusive sales and
negotiation with $1 million as a floor.
Don King, 742 F. Supp. at 762. It did not
establish a $1 million minimum purse
guarantee for all title bouts. If the boxer
fought in a title bout after the three post-
Tokyo fights, there was no minimum
guarantee for that fight in either the
original contract or the second agreement.
Thus, even after the second agreement,
when the court decided the case, there
were still fights for which there were no
minimum purse guarantees.

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distribution contract, it is not usually
practicable to fix prices and the quantum
of goods sold; and the rules of certainty
and definiteness which govern the
ordinary contract of sales have no
application. Unlike a pure contract of
purchase and sale, agreements of this
class embody mutual promises and
obligations with sufficiently definite
standards by which performance can be
tested. The grant of the exclusive
franchise is a consideration for the
grantee’s obligation to establish and
develop a market for the sale and
distribution of the product in the area
covered by the monopoly. The character
of the contractual arrangement is such as
to preclude explicitness as to quantity
and prices. This is especially so where .
. . the product is new and untried and its
potential worth and market value and the
cost of manufacture and distribution are
unknown quantities. Such contracts have
the requisite mutual assent and
consideration. They are not comparable
to the ordinary executory agreement to
buy and sell goods.
Id. at 256-57 (emphasis added). As a
result, the court enforced the contract
despite its failure to set a price for the
goods.
In Allied Disposal, Inc. v. Bob’s
Home Service, Inc., 595 S.W.2d 417
(Mo. App. 1980), a waste disposal
company contracted with a waste site
owner for exclusive use of the site. The
price it was to pay for the use of the site
was to vary from month to month, as
“mutually agreed upon by the parties for
each contract of hauling.” Id. at 418.
When the waste disposal company
sought to have the contract declared void
for its failure to specify a price, the court
upheld the arrangement, due to its
similarity to an exclusive sales and
distribution contract. Id. at 420. The
open price term merely reflected the
parties’ knowledge that different types of
wa ste require d diff erent disposal
methods, and that since there was no way
to know in advance how much of each
type of waste would be disposed, it was
wise to leave the exact price to be
negotiated later. Id. at 421.
In Marcor M gmt., Inc. v. IWT
Corp., No. 96-CV-1519FJS, 1998 WL
809011 (N.D.N.Y. Nov. 17, 1998), the
parties had entered into a contract under
which Marcor paid IWT a sum of money
for exclusive marketing rights to IWT’s
soil remediation technologies. The
agreement between Marcor and IWT did
not state a price at which IWT would sell
its product to third parties identified by
Marcor. When IWT argued that the
a g r e e m e n t w i t h M a r c o r w a s
unenforceable because these price terms
were left open, the court disagreed,
stating that “the fact that a term is left
open does not automatically render a
contract unenforceable.” Id. at *6 (citing
Restatement (2d) of Contracts § 33). The
court noted that the contract required
IWT’s consent before it could be bound
to any agreement with a third party and
c o n c l u d e d t h a t “ a r e a s o n a b l e

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interpretation of this provision is that the
parties would mutually agree upon the
price at a later date.” Id. Because there
was no requirement that IWT enter into
future contracts for its services, there was
no problem with the fact that the
exclusive marketing agreement with
Marcor left open the price terms of such
contracts.
Although the Agreement between
Banner and Echols deals with a very
different subject matter from the
contracts at issue in Mantell, Allied
Disposal, and Marcor, its structure
closely resembles the structure of the
agreements in those three cases. In each
of the three cases, one party bargained
for the exclusive right to distribute, use
or market the other party’s product or
service, just as Banner bargained for the
exclusive right to promote Echols in the
instant situation. In each of the three
cases, the prices of specific transactions
that might occur within the exclusive
relationship were left open, just as the
purses for any bouts that Echols might
fight during the course of the exclusive
promotional agreement were left open
here. And, as a practical matter in these
fact settings, the price would presumably
be affected by certain factors arising
later, beyond anyone’s control. Leaving
the prices to be negotiated at a later time
would allow the parties to arrive at a
more informed decision. So too, here,
losses by Echols clearly would impact
the value of his bouts, and later
negotiations would better address any
such situation.
W e r e c o g nize that these
pronouncements are from courts other
than those of Delaware. The Delaware
courts have not had an opportunity to
confront the issue of price indefiniteness
in the context of an exclusive distribution
or marketing contract. What little
Delaware case law exists regarding
indefinite terms tends to arise in
situations involving a pure sale of goods
or services. See, e.g., Hammond &
Taylor, Inc. v. Duffy Tingue Co., 161
A.2d 238 (Del. Ch. 1960) (examining a
contract for sale of a business); Hindes v.
Wilmington Poetry Society, 138 A.2d
501 (Del. Ch. 1958) (examining a
contract for sale of a manuscript); Most
Worshipful Prince Hall Grand Lodge of
Free and Accepted Masons of Delaware
v. Hiram Grand Lodge Masonic Temple,
80 A.2d 294 (Del. Ch. 1951) (examining
a contract for a sale of stock); Raisler
Sprinkler Co v. Automatic Sprinkler Co.
of America, 171 A. 214 (Del. Super. Ct.
1934) (examining a contract for a
license). While these older Delaware
cases stand generally for the principle
that price is an essential term of every
contract, we believe this principle would
give way if fact patterns were presented,
such as those in Mantell, Allied Disposal,
and Marcor, where the price left
indefinite was not the price of the
exclusive relationship, but the price of a
transaction occurring within that
relationship, and Delaware would
address these nuances in the same
reasonable manner as the courts did in
these cases. Also, because Delaware
a p p e a rs t o h a v e e m b r a ce d t h e

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Restatement of Contracts,5 wh ich
addresses, and reflects a more modern
v i e w r e g a r d i n g e n f o r c e a b i l i t y
notwithstanding indefinite price terms,
we predict that the Delaware Supreme
Court would find the instant Agreement
to be enforceable.
We reject not only the somewhat
simplistic view of the District Court but
also the impassioned view of our
dissenting colleague. The issue squarely
presented involved indefiniteness in
specific terms, not bargaining power,
oppression or other factors. The unequal
bargaining power of a boxer in the
boxing marketplace was not briefed, nor
do we think that it should impact our
analysis of certainty in contractual terms.
V.
In light of the foregoing
discussion, we conclude that the District
Court erred when it determined that the
Promotional Agreement’s failure to
specify minimum compensation for
Echols’s participation in bouts secured
by Banner rendered it so indefinite as to
be unenforceable. Accordingly, we will
REVERSE the District Court’s order
granting summary judgment in favor of
Echols.
ROSENN, Circuit Judge, dissenting.
Boxing is a perennial sport,
stretching from the golden days of
ancient Greece to present times. The
professional life of a boxer, however, is
ephemeral and because of the violence of
the sport, is limited to a few fleeting
years. The possibility of a defeat is
always imminent. Thus, a purported
contract between a promoter and boxer,
which permits the promoter in the event
the boxer “should lose any bout” to
rescind its obligation to provide any
minimum purses, lays all the odds in
favor of the promoter.
Boxer Antwun Echols (“Echols”)
and his promoter, Banner Promotions,
Inc. (“Banner”) dispute the enforceability
of the exclusive promotional agreement
that they executed in 1999. The
purported contract, drafted by Banner
and governed by Delaware law, allowed
B a n ner to retain the exclu siv e
promotional rights to secure all
professional boxing bouts for at least
four years, but failed to maintain any
price term following a defeat. As
drafted, Echols must rely on Banner’s
good will for future compensation,
hoping that the promoter will renegotiate
acceptable new terms on either a bout-
5Although the Delaware Supreme
Court has never relied upon Section 33 of
the Restatement, other Delaware courts
have cited it with approval. See, e.g.,
Independent Cellular Telephone, Inc. v.
Barker, No. Civ. A.15171, 1997 WL
153816, at *4 (Del Ch. Mar. 21, 1997);
Middle States Drywall, Inc. v. DMS
Properties-First, Inc., No. Civ. A 95L-01-
041 SCD, 1996 WL 453418, at *8 (Del.
Super. Ct. May 28, 1996).

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by-bout or collective-bout basis. If the
new financial terms are unacceptable to
the boxer, the purported contract does
not allow him to look elsewhere. In my
mind, this one-sided instrument is not a
legal contract. The instrument is not
worthy of judicial enforcement, and I
believe that the Delaware Supreme Court
would hold it unenforceable. I therefore
respectfully dissent.
I.
The majority acknowledges the
that Delaware Courts “will not enforce a
contract that is indefinite in any of its
material and essential provisions.” (Maj.
Op. at 8) But, the majority rationalizes
that the disputed agreement “does not
merely deal with a bout or a series of
bouts” but with “the relationship between
the two parties, a relationship in which
Echols promised to fight exclusively for
Banner. . . .” (Maj. Op. at 9) Every
contract between two parties deals with a
relationship, but from the boxer’s corner,
the essen tial ingredients of that
relationship are the bout or series of
bouts and the obligation of the promoter
to provide a purse for the boxer.
A professional fight is no mere
exhibition. It is a contest for victory and
money. The relationship between a
promoter and a boxer is meaningless
unless the boxer engages in his craft and
receiv es appropriate compensation.
Therefore, the bouts and their purses are
not only relevant, but material and
essential to the relationship. The details
spelled out in Section Six of the disputed
agreement with respect to the purses for
all bouts reflects how important and
material the related parties regarded the
purses. The majority’s ipse dixit
statement that the purses are not essential
com pletely ignores the language
painstakingly set forth in Section Six.
Boxing can be a brutal business,
and fighters have precious little time to
capitalize on their talents and age. In this
case, the price limits set forth in Section
S i x g u a r a n t e e d t h e m i n i m u m
compensation that Echols could expect
each time he stepped into the ring.
Therefore, the essentiality of the
minimum price term to the bargain
reached between the parties to this
contract cannot be denied.
Neither party disputes that from
the time the instrument was executed
until Echols’ first boxing loss, the
contract guaranteed Echols minimum
purses for each fight. However,
following Echols’ loss to Bernard
Hopkins in 1999, Section Eight of the
instrument authorized Banner to either
“rescind this Agreement or the purses set
forth in paragraph (6) shall be subject to
renegotiation.” Banner did not rescind,
but elected to renegotiate. The majority
interprets this clause as requiring that the
p r i c e t e r m s therea fter m ust b e
renegotiated on a “bout-by-bout” basis.
(Maj. Op. at 8) However, the District
Court interpreted the contract differently,
and found the clause in Section Eight to
be “undoubtedly ambiguous.” (D. Ct. Op.
at 8) According to the District Court, the
renegotiation clause may also be

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13
interpreted to require that following a
loss, the entire minimum price structure
must be renegotiated all at once,
establishing new price minimums to
govern the agreement. (D. Ct. Op. at 8)
Under this interpretation, the parties
would be able to revitalize the instrument
following the defeat by renegotiating a
schedule of minimum prices that reflect
Echols’ market value as a fighter with
one loss.
I r e c o g n i z e t h a t b o t h
interpretations of the renegotiation clause
present risks to the parties. If price
minimums are to be renegotiated all at
once, both parties risk that a new
agreement will not be reached and the
contract, which they otherwise would
choose to maintain, would be voided.
On the other hand, if prices are left to be
renegotiated on a bout-by-bout basis, the
boxer risks that he will be forced to
accept whatever minimal price the
promoter offers, or not fight at all. For
the reasons described below, I believe
that under the relevant contract law, the
former interpretation is the only
enforceable and fair option.
Echols essentially argues that he
did not bargain for an agreement where
following a loss, he is left to either fight
for whatever price Banner offers, or not
fight at all. I believe that the general rule
of contract law, recognized in Delaware
and other jurisdictions, that “price is an
essential ingredient of every contract ...
for the rendering of services” is intended
to protect against exactly the situation
that Echols now faces. Raisler Sprinkler
Co. v. Automatic Sprinkler Co., 171 A.
214, 219 (Del. Super. Ct. 1935) (citation
omitted). See also Middle States
Drywall, Inc. v. DMS Properties-First,
Inc., 1996 WL 453418, at *7 (Del. Super.
May 28, 1996).
The majority holds that while the
purses for the fights are “relevant,” they
are not material and essential because the
parties could satisfy the terms of the
agreement without any bouts occurring.
I acknowledge that under the strict terms
of the contract, Banner could make three
offers per year for boxing matches with
de minimus purses, Echols could reject
all of Banner’s offers, and both parties
would be technically compliant with the
contract terms. Under this interpretation,
a court could determine when a party
breaches these terms, thereby providing
some level of reasonable certainty in the
contract.6 However, I do not believe that
this theoretical certainty changes the
essential character and terms of this
boxing promotion contract, nor does it
make the contract enforceable under
Delaware law. Even the most basic
service contract would be deemed
unenforceable if it failed to state a price
term, regardless of whether the contract
requires the parties to ever actually
exercise their ability to purchase or sell
6 “The terms of a contract are
reasonably certain if they provide a basis
for determining the existence of breach
and for giving an appropriate remedy.”
Restatement (Second) of Contracts §
33(2).

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14
the services. The Delaware Superior
Court reinforced this idea in Raisler
Sprinkler, explaining that
[o]ne of the commonest
kind of promises too
i n d e f i n i t e f o r l e g a l
enforcement is where the
p r o m i s o r r e t a in s a n
unlimited right to decide
later the nature or extent of
his performance. This
unlimited choice in effect
destroys the promise and
makes it merely illusory.
*** But a promise to give
anything whatever which
the promisor may choose ...
is illusory, for such
p r o m i s e s w o u l d b e
s a t i s f i e d b y g i v i n g
something so infinitely
n e a r n o t h i n g o r b y
performance so indefinitely
postponed as to have no
calculable value.
171 A. at 219 (quoting Williston on
Contracts, vol. 1 § 43).
The majority portrays Section
Eight of the purported agreement to
allow for certain events to merely “alter”
the price structure in the contract. (Maj.
Op. at 9) In my view, Section Eight does
more than alter the price. It removes the
price structure completely, and this
renders the contract fatally defective.
Under the majority’s holding, Echols’
loss authorizes Banner to make offers for
fights at any price, even below market
rates, and still remain technically
compliant with the contract terms.7 I
believe this holding “destroys the
promise and makes it merely illusory.”
Id. In reality, all boxers eventually lose,
7 The majority, at note 2, opines that
because the agreement requires Banner to
make “bona fide” offers, a de minimus
price offer would not be valid under the
agreement and may trigger a breach. First,
interpreting “bona fide” to mean that a
court should imply a reasonableness
standard to the price term is inconsistent
with the majority’s holding that the price
term is non-essential. Second, I find no
case law, in Delaware or elsewhere,
establishing that a “bona fide offer”
implies a reasonable price term. Rather,
when used to describe an offer, the term
“bona fide” refers to an offer intended to
produce a legal contract, regardless of
whether the price is reasonable. See e.g.
Foxboro Co., Inc. v. Soft Systems
Engineering, Inc., 894 F.Supp. 48, 51
(D.Mass. 1995) (explaining that a bona
fide offer refers to an offer made with an
intent to bind); In re Formica Corp.
Shareholders Litigation, 1989 WL 25812,
at *11 (Del. Ch. Mar. 22, 1989)
(explaining that an offer to purchase a
company made for the purpose of
stimulating stock activity and raising share
price is not a bona fide offer). Under this
definition of “bona fide,” Banner could
make bona fide offers for fights at any
price, as long as the offer is intended to
bind the parties if accepted.

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15
and some live to fight another day.
Although a loss may decrease a boxer’s
market value, and some mechanism to
adjust price may be required to account
for this lack of certainty in the boxing
market, I believe that the Delaware
Supreme Court would interpret the prior
case law in the state to require the
maintenance of some minimum price in
order to deem the contract enforceable.
II.
In my view, the sparse case law
on this topic also supports the premise
that boxing promotions contracts must
have at least some minimum price term
to be enforceable. Both Banner and the
majority cite to Don King Prods., Inc. v.
Douglas, 742 F.Supp. 741 (S.D.N.Y.
1990), to support their position in this
case. Yet, Don King supports the
opposite conclusion. The original
contract in Don King set forth minimum
prices for all bouts except title bouts, and
the parties later reached a second
agreement establishing a $1.3 million
purse for a title bout and a $1 minimum
purse guarantee for the next three fights,
subject to renegotiation upwards in price
if the fighter, Douglas, should win the
heavyweight title. 742 F.Supp. at 748,
n5. Therefore, when the court decided
the case, there were minimum price
guarantees in place, and Douglas was
forced to take the position that because
his market value as a fighter had risen
significantly, the $1,000,000 price
minimum was “insufficient to render the
contract sufficiently definite for
enforcement.” Id. at 761. The court
found that the $1,000,000 minimum
price was sufficient to bind the parties,
and clearly stated that “the minimum
price terms, together with DKP’s upfront
payment of $25,000 and its commitments
to hold a set number of bouts, clearly did
provide an expectancy of compensation
for Douglas that was sufficiently definite
to induce his promise to fight exclusively
for DKP.” Id. at 763 (emphasis added).
Thus, Don King stands only for the
proposition that an exclusive boxing
promotion contract with an indefinite
price structure, supported at least by
minimum price terms, is enforceable.
F u r t h e r m o r e , D o n K i n g
establishes that minimum price terms are
considered part of the bargain that a
promoter offers a boxer to induce a
promise of exclusivity. By failing to
consider the minimum price term as an
essential component of the bargain in the
present case, the majority deviates from
the rule established in Don King. Under
the majority’s holding, a boxer loses the
certainty of minimum compensation; the
promoter, however, maintains exclusive
control. Echols maintains a price
guarantee as long as he wins, but
receives no minimum price guarantee
after a loss, when he is most vulnerable.
The effect of the majority’s decision is to
leave a boxer subject to the whim and
mercy of the promoter, once the boxer
loses a bout.
Similarly, I believe that the
majority’s reliance on the Restatement

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16
(Second) of Contracts is equally
misplaced. Section 33(2) of the
Restatement acknowledges that price
terms may be indefinite in certain
situations. However, Comment e, relied
upon by the majority, deals primarily
with contracts for the sale of goods,
where price may be determined through
market forces. To the extent that
Comment e may also “apply to contracts
for the rendition of services,” it also
states that “one party may be given the
power [to set the price] within limits set
by agreement or custom or good faith”
(emphasis added). In my reading, the
contract between Echols and Banner
operated in accordance with Comment e
before Echols lost a fight, because it did
not set specific prices, but allowed
Banner to make offers for bouts “within
limits,” i.e. above the minimum price
levels. After the loss, all limits were
removed and no formula was set forth to
fix prices for purses. Therefore, the
contract no longer complied w ith
Comment e.
Finally, the cases cited by the
majority from jurisdictions outside of
Delaware, Mantell v. Int’l Plastic
Harmonica Corp., 55 A.2d 250 (N.J.
App. 1947), Allied Disposal, Inc. v.
Bob’s Home Services, Inc., 595 S.W.2d
417 (Mo. App. 1980), and Marcor
Mgmt., Inc. v. IWT Corp., 1998 WL
809011 (N.D.N.Y. Nov. 17, 1998), are
all distinguishable in two key respects.
First, none of the products or service
contracts in these cases included a
defined price limit at the time of contract
ratification that was relied upon as an
essential term in the original bargain.
Thus, it is more reasonable in these cases
to conclude that price was a non-essential
term. Second, the cases cited by the
majority dealt with contracts for new
products (Mantell), new technology
(Marcor), or undefined services (Allied
Disposal). Therefore, those contracts all
dealt with situations where there was
extreme market uncertainty that could
not be sufficiently defined at the time of
the agreement. The court in Mantell
noted that the recent development of
contracts with indefinite price terms may
be particularly necessary where “the
product is new and untried and its
potential worth and market value and the
cost of manufacture and distribution are
unknown quantities.” 55 A.2d 250, 389.
Even though individual boxers
may be untested, the sport and spectacle
of boxing is hardly a new industry with
unknown production and distribution
costs. If a promoter and a boxer can
reasonably agree to minimum purses
when the boxer is undefeated, they
should be able to agree fairly on them
when the boxer has one loss and both
retain some bargaining power. The
disputed instrument leaves the boxer
with no guaranteed purses, no bargaining
power, and the promoter in total control
of his boxing career for the next several
years.
The District Court found the
contract unenforceable because the
contract is an agreement to negotiate
future agreements without specifying its

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material and essential price terms. (D. Ct.
Op. at 10) I agree with the District
Court.
III.
Therefore, I would hold the
contract in this case unenforceable and
affirm the judgment of the District Court.

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