June 14, 2016
Since we reported last week that the judge had granted Nike a Temporary Restraining Order (TRO) in its lawsuit versus US 800m star Boris Berian, preventing Berian “from endorsing or competing while wearing any competitor’s products” for 14 days, two things have occurred:
1) The full text of the Temporary Restraining Order has been published (before only the minute (shortened) order had been issued). (The full text of the TRO is here or at bottom of this article)
2) Both sides agreed that Berian’s side could delay until June 24th filing its response to the initial lawsuit which was originally due by June 10th.
We’ll quickly discuss the two things above with the help of an anonymous LetsRun.com visitor who it is fair to say is a “legal expert” – one that needs to stay anonymous due to their employment in the legal industry.
To a non-lawyer, the full text of the TRO appears to be very favorable to Nike. It says in point #1:
Nike is likely to succeed on the merits that a contract existed between Nike and Defendant Boris Berian (“Defendant”) as of January 22, 2016. In this case, Nike argues that it properly matched an offer from New Balance Athletics, Inc. (“New Balance”) to Defendant, thereby creating a new contract pursuant to Section 5 of the parties’ 2015 Track & Field Contract. Nike has shown that it is likely that when, on January 22, 2016, Nike notified Defendant that it agreed to match the terms of the New Balance offer, a contract was formed. Based on the record currently before the Court, it is likely that the resulting contract between Nike and Defendant does not include reductions because the New Balance offer did not include reductions.
We asked our legal expert if this meant the judge was siding with Nike, they said no it does not as Nike’s lawyers wrote the Temporary Restraining Order. Our expert wrote, “This order was drafted by Nike’s counsel. This is typical — when a judge grants a motion, he or she will ask the moving party to draft and submit the proposed order. Of course, Nike’s counsel is going to draft it as favorably for Nike as possible without straying from the substance of what was ordered.”
As for point #2 above, Berian’s team still has not filed its initial response to the lawsuit and now has an additional 14 days to do so. (However, there is a preliminary injunction hearing before then on June 21st that could decide the outcome of the case. More on that below). Berian’s team said it needed the extra time because a) it has been busy responding to Nike’s temporary restraining order b) it has been busy preparing for the preliminary injunction hearing and c) it wants to file publicly Nike’s full proposed contract with Berian as part of its response and Nike wants this contract to be kept confidential, so both parties need time to work this out.
If the full contract is filed in the public record, it would be a rare public glimpse to see how “reduction clauses” work in track and field endorsement contracts. A key point of contention in this lawsuit is Berian’s team says Nike did not match New Balance’s contract offer because Nike submitted a contract that was not guaranteed and had material “reduction clauses” in it.
Last week Berian’s agent Merhawi Keflezighi told the Daniel Petty of the Denver Post Berian’s Nike contract “contains two pages of reductions, including demands that Berian participate in a minimum number of races and reach a certain world ranking in his event.”
While Berian’s team now has until June 24th to file its initial response to the actual lawsuit, before then, something more significant will take place. A week from today on June 21st there will be hearing on Nike’s request for a preliminary injunction. The hearing on June 21 will almost certainly determine what Berian wears at the Olympic Trials and for all intents and purposes could be the end of the matter. Our “legal expert” wrote this about hearing, “If Nike win at the PI stage, it’s pretty much game over as it will have proven itself likely to succeed on the merits at trial under greater scrutiny than it endured at the TRO stage. The case could still go to trial, but that won’t occur prior to the Olympics and after that, who cares?” and “Getting a preliminary injunction is much more difficult than getting a TRO and is very much like prevailing at trial. It certainly serves as a strong indicator as to where things are likely to wind up after trial.”
A key date before the hearing on June 21 is this Friday, June 17th, as depositions are scheduled and Berian will likely be questioned by Nike lawyers as both sides prepare for the hearing next week.
Below we’re including more from an email on the TRO from our “legal expert”:
Temporary Restraining Order:
14-Day Delay for Berian’s Response: