UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1385

ALLY BAKER, 

 Plaintiff - Appellant, 

 v. 

ADIDAS AMERICA, INCORPORATED, 

 Defendant - Appellee. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:07-cv-00168-FL) 

Argued: May 14, 2009 Decided: June 30, 2009 

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Allison S. H. Ficken, DOVIN MALKIN & FICKEN, LLC, 

Atlanta, Georgia, for Appellant. Robert Meynardie, THE 

MEYNARDIE LAW FIRM, PLLC, Raleigh, North Carolina, for Appellee. 

ON BRIEF: Edward J. Dovin, DOVIN MALKIN & FICKEN, LLC, Atlanta, 

Georgia, for Appellant. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Ally Baker appeals an order of the district court 

dismissing her action on the basis of improper venue. See Fed. 

R. Civ. P. 12(b)(3). Finding no error, we affirm. 

I. 

 Baker, a resident of Raleigh, North Carolina, was an 

outstanding junior tennis player who achieved national and 

international success as an amateur. While she was a junior, 

Adidas provided free merchandise for her to use during 

tournaments. 

 In August 2002, at the age of 16, Baker turned 

professional, and in March 2003, Baker hired an agent to handle 

endorsement agreements. Still a minor, she entered into a 

“Representation Agreement” with SFX Sports Group, who was to 

serve as Baker’s exclusive representative for marketing 

negotiations. The agreement guaranteed $150,000 to Baker to be 

paid by SFX in installments over a two-year period. It also 

provided that whatever money she made through agreements SFX 

secured would be retained by SFX and applied to the guarantee 

until it was repaid. Baker and her father both signed this 

agreement. 

 Subsequently, on or about April 10, 2003, Baker—still a 

minor—signed an endorsement agreement with Adidas International 

2 
Marketing BV (“Adidas International”), which is headquartered in 

Amsterdam, the Netherlands, and which is the corporate 

grandparent of defendant Adidas America, Inc (“Adidas America”). 

The agreement was retroactively effective as of January 1, 2003. 

Pursuant to this agreement (the “Adidas Agreement”), Baker 

agreed to wear Adidas footwear and apparel for $20,000 in the 

first year of the contract and for $25,000 per year for each of 

the final two years, and Adidas agreed to pay certain 

performance bonuses. Baker expressly appointed her agent SFX to 

receive, on her behalf, payments from Adidas International that 

came due under the Adidas Agreement. Baker agreed that any 

payment from Adidas International to her agent completed Adidas 

International’s duty to pay her, and Baker agreed that, for 

purposes of the Adidas Agreement, any revocation of her 

appointment of SFX as her agent would be in writing. Finally, 

the Adidas Agreement provided that any claim of Baker’s arising 

out of, or relating to the agreement would be governed by the 

law of the Netherlands and settled by Amsterdam courts.1

 1

 The agreement provided, however, that “[A]didas 

International shall additionally be entitled, at its sole 

option, to bring proceedings against [Baker] in the courts 

competent for” Baker. J.A. 40. 

3 
 In 2003, the first year of the Adidas Agreement, Adidas 

International wired two $10,000 payments to SFX for Baker. 

Adidas also shipped shoes and clothes to Baker, which she wore 

while playing tennis. 

 In January 2004, Baker began experiencing problems with her 

left foot and withdrew from her tournament schedule. In April, 

Adidas International sent a representative from Portland, Oregon 

to North Carolina to examine Baker’s foot and the shoes she was 

using. During this timeframe, Adidas International also made 

payment to SFX for Baker’s travel expenses for a training camp. 

On April 10, 2004, Baker turned 18. 

 On April 19, 2004, Adidas International sent another 

payment to SFX for Baker in the amount of $12,500. In May 2004, 

the company flew Baker to Portland to try a redesigned shoe and 

gave her additional merchandise while she was there. The 

redesigned shoes did not help Baker. In October 2004, Adidas 

International wired $12,500 to SFX for Baker, thus completing 

its contractual obligation to pay Baker a $25,000 endorsement 

fee for the 2004 contract year. 

 In November 2004, with Baker still injured, Adidas 

International suspended further payments to her under Section 10 

of the Adidas Agreement, which permitted suspension of payments 

“[w]ithout prejudice to the right to terminate th[e] Agreement” 

if Baker became unable to compete at world-class level for six 

4 
months or more. J.A. 39. After undergoing surgeries and 

therapy, Baker was unable to recover and retired in 2005. 

 On August 4, 2005, Baker and SFX entered into an agreement 

and release terminating the Representation Agreement and 

“settl[ing] all issues between them.” J.A. 149. Simultaneous 

with the termination of SFX’s representation of Baker, Baker 

received a $24,716.50 payment from SFX, which she deposited in a 

bank account that she held jointly with her father. 

 In a letter dated December 20, 2006, from Baker’s attorney 

to Adidas International, counsel stated, “Now that Ms. Baker has 

reached the age of majority, you are hereby notified that she 

has elected to declare the Agreement void. Accordingly, the 

jurisdictional provisions and limitations of liability set forth 

in the Agreement are unenforceable.” J.A. 146. 

 In 2007, Baker brought this action against Adidas America 

in North Carolina state court, alleging that the shoes selected 

for her caused her injuries and ended her career. The complaint 

asserts a negligence claim and claims alleging breaches of the 

implied warranty of fitness for a particular purpose and the 

implied warranty of merchantability. 

 Adidas America removed the action to federal court and 

moved to dismiss under Rule 12(b)(3) for improper venue, 

pointing to the forum-selection clause contained in the Adidas 

Agreement. In her deposition, Baker stated that she did not 

5 
remember signing the Adidas Agreement although she acknowledged 

that her signature is on it. She also stated that she was not 

aware of the payments that were made to her under that 

agreement. In his deposition, Baker’s father, who did not sign 

the agreement, contended he did not even know the agreement 

existed until about the time this suit was initiated. 

 The district court granted Adidas America’s motion to 

dismiss. The court reasoned that since Baker entered into the 

Adidas Agreement—which contained the forum-selection clause—when 

she was a minor, it was voidable at her election under North 

Carolina law within a reasonable time after she reached the age 

of 18.2 The court noted that Baker clearly authorized SFX under 

the Adidas Agreement to accept payments from Adidas 

International and that SFX in fact received $25,000 in such 

payments after Baker turned 18. The court concluded that 

regardless of whether Baker had actual knowledge of the 

payments, knowledge of them was imputed to her because SFX was 

her agent. The court also noted that, after Baker turned 18, 

she allowed Adidas International to attempt to redesign shoes 

for her and to fly her the next month to Portland, Oregon, for 

the same purpose. The court concluded that Baker’s “failure to 

 2

 The parties agree that North Carolina law controls 

regarding this issue. 

6 
undertake the steps necessary to disaffirm the [Adidas] 

Agreement within a reasonable time, combined with defendant’s 

continued performance of the contract through payments to SFX, 

requires this court to reject plaintiff’s arguments that the 

contract is avoidable due to age or proper disaffirmation.” 

J.A. 163. 

 Because the forum-selection clause was prima facie valid, 

the district court concluded that the burden was on Baker to 

demonstrate that it should not be enforced under federal law. 

The court concluded that the mere fact that Amsterdam was a 

foreign forum did not automatically allow Baker to avoid the 

clause. The court also determined that application of the 

clause would not contravene North Carolina public policy, 

specifically N.C. Gen. Stat. § 22B-3 (2009), because that 

statute applies only to contracts entered into in North 

Carolina, and Baker had not demonstrated that the agreement was 

finalized in North Carolina. 

 Baker now appeals the grant of Adidas America’s motion to 

dismiss. 

II. 

 The validity of a forum-selection clause is properly 

analyzed under Federal Rule of Civil Procedure 12(b)(3), and we 

review the district court’s disposition of such a motion de 

7 
novo. See Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 

F.3d 544, 550 (4th Cir. 2006). 

A. 

 Baker first argues that she did not ratify the Adidas 

Agreement after she turned 18 and that the district court 

therefore erred in concluding that she was bound by it under 

North Carolina law. We disagree. 

 Under North Carolina law, “agreements or contracts, except 

for those dealing with necessities and those authorized by 

statute, are voidable at the election of the infant and may be 

disaffirmed by the infant during minority or within a reasonable 

time of reaching majority.” Creech v. Melnik, 556 S.E.2d 587, 

591 (N.C. Ct. App. 2001) (internal quotation marks omitted). 

What constitutes a reasonable time in this context “depends upon 

the circumstances of each case, no hard-and-fast rule regarding 

precise time limits being capable of definition.” Nationwide 

Mut. Ins. Co. v. Chantos, 214 S.E.2d 438, 444 (N.C. Ct. App. 

1975). “The privilege of disaffirmance may be lost where the 

infant affirms or otherwise ratifies the contract after reaching 

majority.” Bobby Floars Toyota, Inc. v. Smith, 269 S.E.2d 320, 

322 (N.C. Ct. App. 1980). 

 Here, after turning 18, Baker accepted two payments from 

Adidas International totaling $25,000. The second payment was 

8 
received more than six months after her eighteenth birthday.3 

She also accepted Adidas International’s attempt to redesign her 

shoes, as well as other merchandise at no charge to her one 

month after her birthday. After receiving all of these 

benefits, it was not until two years later—more than 32 months 

after she achieved the age of majority—that Baker communicated 

to Adidas International that she wished to void her contract. 

Under the facts of this case, this delay constituted an 

unreasonable length of time to elect disaffirmance.4 Cf. Bobby 

Floars Toyota, 269 S.E.2d at 322-23 (holding that minor waited 

an unreasonable length of time to void purchase money security 

agreement to finance automobile when he continued to drive the 

vehicle and make payments on it for 10 months after reaching 

majority). In any event, Baker’s acceptance of the two payments 

 3

 Baker claims that it was her agent, SFX, that actually 

received the payments, but under North Carolina law, a principal 

is liable for the acts of her agent that are within the scope of 

the agent’s authority. See Harris v. Ray Johnson Constr. Co., 

534 S.E.2d 653, 655 (N.C. Ct. App. 2000). 

4

 Baker argues that she stopped performing under the 

contract when she became injured in that she did not engage in 

competitive tennis after that and that Adidas International 

stopped performing when it suspended payments to her because of 

her injury. However, none of the conduct identified by Baker 

even constitutes a breach of the agreement, let alone a 

manifestation of an intention to void it. 

9 
and other benefits after turning 18 “constituted a ratification 

of the contract, precluding subsequent disaffirmance.” Id. at 

323; see McCormic v. Leggett, 53 N.C. (8 Jones) 425, at *2 

(1862) (holding that when minor sold real property, he ratified 

the sale by accepting payment after reaching age of majority).5

B. 

 In The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 

(1972), the Supreme Court held that forum-selection provisions 

are presumptively valid and should be enforced absent a clear 

showing that enforcement would be “unreasonable or unjust, or 

that the clause was invalid for such reasons as fraud or 

overreaching,” or that enforcement “would contravene a strong 

public policy of the forum in which suit is brought.” Baker 

maintains that the district court erred in ruling that she could 

not avoid the forum-selection clause here on that basis. We 

disagree. 

 Baker contends that the forum-selection clause “was 

obtained through overreaching” in that “[A]didas went around 

 5

 Baker argues alternatively that the forum-selection clause 

cannot be enforced because the injury for which she seeks 

compensation in this lawsuit occurred before she turned 18. 

Even assuming that the time of her injury had some relevance, 

the agreement was certainly not void at that time. Her status 

as an infant made the contract voidable, not void, during the 

time that she was a minor, and she did not disavow the contract 

during that time. 

10 
Baker’s father and her attorney and dealt directly with her when 

she was only 16.” Brief of Appellant at 26. In this regard, 

Baker argues that the forum-selection clause contravenes the 

public policy “protecting minors from being taken advantage of 

in unfair bargains at a time when the law recognizes they are 

too young to adequately protect their own interests.” Id. at 

30. Baker’s allegation notwithstanding, the “Agreement and 

Release” entered into by SFX and Baker specifically recites that 

the Adidas Agreement was “negotiated by SFX,” J.A. 150, which 

was precisely the arrangement contemplated when Baker contracted 

with SFX to negotiate such contracts on her behalf. The notion 

that Adidas International was somehow taking advantage of an 

uncounseled sixteen-year-old is simply without basis in the 

record. 

 Baker additionally argues that the forum-selection clause’s 

chosen forum, Amsterdam, is too inconvenient to her to be 

enforced. We disagree. 

 “[W]here it can be said with reasonable assurance that at 

the time [of the making of] the contract, the parties to a 

freely negotiated private international commercial agreement 

contemplated the claimed inconvenience,” such inconvenience will 

not generally warrant setting aside the clause. The Bremen, 407 

U.S. at 16. However, if the party challenging the clause 

demonstrates “that trial in the contractual forum will be so 

11 
gravely difficult and inconvenient that he will for all 

practical purposes be deprived of his day in court,” the clause 

may be avoided. Id. at 18. 

 Baker contends that Amsterdam “has no connection to the 

parties or events at issue.” Brief of Appellant at 27. Without 

citation to the record, Baker claims that “all of the witnesses 

are in the United States, most in North Carolina.” Id. at 29. 

Defendant responds, however, that “Baker’s claims are based upon 

the use of a tennis shoe that was designed and thoroughly tested 

in Europe, where a number of potential witnesses are located.” 

Brief of Appellee at 29. Additionally, Adidas International, 

the party with whom Baker contracted, is headquartered in 

Amsterdam. Thus, Baker has failed to show a lack of connection 

between this case and the chosen forum. 

 Baker further maintains, though, that she is only “a 

college student at [the University of North Carolina] with no 

source of income” and that “Amsterdam does not permit 

contingency fee arrangements.” Brief of Appellant at 29. She 

therefore argues that she “cannot afford the extraordinary 

expense of traveling to Amsterdam and paying for attorneys there 

to prosecute these claims.” Id. On this basis, she contends 

that the forum-selection clause should not be enforced. 

However, especially because Baker has not demonstrated that 

these burdens were unforeseeable to her when she ratified the 

12 
13 

agreement, we do not believe Baker has shown that enforcement of 

the forum-selection clause would be unjust. Cf. Paper Express, 

Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 758 (7th Cir. 

1992) (holding that additional expense and inconvenience of 

litigating in foreign forum did not justify avoidance of forumselection clause because plaintiff “was presumably compensated 

for this burden by way of the consideration it received under 

the contract”). We therefore conclude that the district court 

properly enforced the clause. 

III. 

 In sum, finding no error in the district court’s decision, 

we affirm. 

AFFIRMED