Decision making under pressure — episode 4 — The balance | FR

Lire en français

Each of the three previous deliveries had its own precise object.

The first showed how a new law — the confidentiality of in-house legal opinions — can, in the hands of a function oriented toward risk coverage, reduce the very space of strategic deliberation it claimed to protect. The second showed how the vocabulary of governance — align, challenge, consensus — redistributes the right of review without redistributing the mandate, until the person who bears responsibility no longer holds the deciding voice at the table. The third showed how each layer of structuring added to the legal function, always justified, always referenced, produces the alembic: a device perfectly equipped to analyse, qualify, reserve, sequence — and increasingly unable to let a living decision through.

This delivery asks the question that follows naturally from the first three: when this alembic produces litigation worth several million euros a few weeks before the World Cup — when the record becomes a dispute, when the table has diluted vigilance on what mattered, when the structure has turned a simple renewal decision into a problem never posed — who answers for it? And to whom?

The answer is uncomfortable. It is also the only one that makes it possible to build something useful.

I. Nike Is Not a Trademark Case

The World Cup is being prepared. Total 90 — Footware. A mythical stud silhouette, a commercial identity built over decades, a window that does not reopen twice. Marketing thinks big. The enthusiasm is real. The campaigns are taking shape.

Meanwhile, in the circuits: the mark is dormant. The portfolio is managed. Budgets are arbitrated. Renewal costs are assessed. The decision to renew is not taken — not because someone decides against it, but because no one asks the question in the right register.

On the other side: a lone actor monitors the registers. He sees an available mark. He files it.

I have a title. Do you?

€2.5 million. A few weeks before the World Cup.

This is not a case of a poorly protected trademark. It is a governance case: a simple commercial decision — to renew — that drifted through the circuits until it no longer existed as a decision. No one decided not to renew. No one decided to renew. The structure did what it knows how to do: manage what exists, not see what is missing.

II. The CFO Asks the Only Question That Matters

He enters. He does not ask who was wrong. He asks the question he always asks.

How much does it cost? And what does it produce?

Legal responds: We have a solid position. The outcome is in our favour. Common law is on our side. The protection-by-use strategy is defensible. We know how to litigate.

The CFO listens. Then: This strategy — litigation, provisions, premium counsel, a long procedure before the World Cup — can we afford it?

Silence.

Because the honest answer is: at Nike, perhaps. At most other companies, no.

This silence reveals something beyond budget embarrassment. It reveals the structure of a relationship with reality: the function knows how to evaluate the cost of litigation. It does not know how to evaluate the cost of a decision not taken. It masters the accounting provisions of a dispute. It does not account for frozen recruitments, delayed expansions, products not launched during the procedure. It defends the existing position. It was not built to see the future positions that will not exist.

This is not a competence failure. It is an orientation failure. And this failure has a structural cause that no one in that room will name spontaneously: the function answers to itself.

III. The Function That Answers to Itself

A function that alone chooses the terms by which it will be judged will always declare itself to be performing.

It defines its own metrics — risks prevented, litigation avoided, compliance maintained. It selects the perimeters that valorise its output. It chooses the time horizons that make its action visible. It can, in good faith and with genuine competence, conclude each year that it has done good work. The litigation avoided is documented. The opinions produced are traceable. The alerts raised are archived.

What no one has documented: the commercial decision steered toward inaction. The mark not renewed because the portfolio was “managed”. The initiative not launched because the reservation was “reasonable”. These non-events appear in no report. They have no visible form. The alembic only produces what it can present — and what it can present is the procedure. Never the aborted strategy.

The structural consequence is perverse: the function can prosper in the organisation’s failure. It can increase its budget precisely because the litigation it failed to prevent now requires additional resources to manage. What answers only to itself always ends up costing others.

Nike’s press release says: a process to protect every brand. That is true — it is indeed a process. It is not a commercial strategy. The alembic received a simple commercial decision in 2019 and treated it as a management object. Six years of competent work around a decision that no longer existed as a decision. What emerges: no longer how to sell Total 90 but how to defend the existing position. And if that position holds, the function can ask to be congratulated.

The alembic feeds on what it generates.

IV. Three Rules of Accountability

The problem is not in the communication between the GC and the CFO. It lies in the architecture of accountability. No reform of language solves it — teaching the GC to translate his ROI into the CFO’s register amounts to sophisticating self-legitimation, not correcting it.

Three conditions are necessary. They are interdependent: none is sufficient alone.

The function’s metrics are set by the executive, not by the function. What the function must produce, on what timeline, at what cost, with what effect on which decisions — this perimeter belongs to the executive. The GC proposes, executes, reports. But the criteria by which one judges whether he has done good work come from the trajectory, not from the expertise. The judge and party always produces a favourable verdict.

The function reports on decisions served, not on risks prevented. The risk prevented is by construction unprovable — one cannot demonstrate that the harm would have occurred without the structure. This is precisely why it is the ideal fuel for a system seeking to escape genuine evaluation. Effective accountability requires something else: which strategic decisions were taken with the function’s support? On what timelines? At what cost? With what quality of information? These metrics link the function to the trajectory — not to its own survival.

The function is steerable from the outside. The executive can, at any moment, modify its orientation, reduce its perimeter, reconfigure its priorities — without that modification triggering organisational resistance that makes change more costly than the status quo. The alembic is not: each layer has its own logics, its own networks, its own incentives to perpetuate itself. Regaining control over a consolidated structure is not a communication exercise. It is a governance operation.

V. What Nike Absorbs, Others Suffer

At Nike, it is a line in the accounts. At others, it is the key left under the door.

€50,000 frozen: a hire cancelled. €250,000: an expansion deferred. A long procedure: a product not launched. A badly timed dispute: an executive who no longer dares.

Litigation does not consume only law. It consumes the future.

What Nike can absorb in contentious sophistication, an SME suffers as strategic abandonment. A solid legal position is a balance sheet luxury — and most balance sheets are not Nike’s. But even at Nike, the real cost is not the €2.5 million buyback. It is the commercial identity of a mythical silhouette left without a pilot since 2019. It is the window that does not reopen twice — and that no one, in the circuits, had identified as a window.

An avoided decision always comes back. With interest.

Doctrine protects the trajectory. The alembic protects the procedure. And the procedure, however solid, has never launched a product.

VI. What Comes Next

These four issues had a single purpose: to show how executive decision-making gets lost, and what it costs when one judges the machine by what it produces — not by what it was supposed to enable.

What comes next asks a different question.

Now that you see how it gets lost: how to recover it — without internal conflict, without dismantling what fulfils real functions, without forcing things through an organisation that has learned to bear down on the trajectory?

That is the subject of the next issues.

When complexity starts to cost,

I help leaders keep business decisions moving under legal pressure.

Lead or Follow | Executive decisions under normative pressure | Dominique Owona-Atangana | substack.com/@dowonat