June 6, 2016
As the Oregonian first reported earlier today, Boris Berian‘s legal team (Vincent C. Ewing and co-counsel William Ferranti) yesterday made its first filing in response to the Nike lawsuit that is trying to force Berian to run for Nike and not New Balance.
The filing was in response to Nike’s request for expedited discovery and a preliminary injunction hearing. Berian’s team asked for a hearing on June 28th. We haven’t had a lawyer look at this, but apparently that request has been denied as the judge has scheduled a hearing for tomorrow (June 7th) in Portland. Both sides will appear before the judge tomorrow to make their arguments about the injunction request.
The Berian filing is not a full response to Nike’s allegations, but it does outline the basics.
Berian’s legal team’s argument is essentially two things:
- Nike included reductions in its contract offer to Boris Berian and the New Balance contract offer did not have reductions so it was not a matched offer and Berian was fine to sign with someone else. They wrote, “Nike concedes that, when Mr. Berian’s agent presented the offer, he explicitly advised that ‘the “lack of reductions” was a “material element of the offer.”‘ But Nike’s purported match included reductions. That should have ended the matter.”
- Even if the Nike offer is considered a match, then Berian legally has the right to not sign with Nike for six months until the matching period of his old contract ended, and then he could sign with whoever he wanted. They believe he is not forced to sign with Nike. With the threat of a lawsuit from Nike, Berian’s team was following this approach until Nike sued. As the filing states, “Even if Nike had matched, that would not have created a new contract, as Nike contends; it would only have forced Mr. Berian to make a choice between signing with Nike or endorsing no one for six months. Out of an abundance of caution and threats of lawsuits by Nike, he has been kept from signing a footwear endorsement contract with New Balance and other companies, including Under Armour and Asics – which is to say, he has endorsed no one.”
A few other things of note:
Berian’s Team Alleges: “Nike’s litigation strategy is likely to interfere with Mr. Berian’s training – and, clearly, is designed to do so.”
Some of the bad blood between the sides leaked out in the filing as Berian’s team alleges the timing of the suit and request for expedited discovery is purposely designed to interfere with his training. They note the request for immediate discovery is unnecessary, and also believe some of the court filings could have been filed together and at an earlier date.
They allege the bad blood in the document:
Further, and plainly the most significant and irreparable harm of all, Nike’s litigation strategy is likely to interfere with Mr. Berian’s training – and, clearly, is designed to do so.
Indeed, Nike’s purported concern with Mr. Berian’s success seems highly disingenuous. Insofar as one is generally deemed to intend the likely effects of his or her actions, Nike’s legal maneuvering appears designed to hinder Mr. Berian’s training and bully him into submission. Nike could and should have pursued this matter in March or April, or at a minimum moved with alacrity in pressing its requests for discovery and emergency relief after it served Mr. Berian on May 20. Instead, Nike ran down the clock, and now makes one extraordinary request after another just as Mr. Berian approaches the peak of the best track and field season of his nascent pro career in a sport where longevity, particularly in his event, is uncommon.
Are They Alleging Even If He Signs With Nike He Is Still Allowed To Wear A New Balance Logo Domestically?
In the document, Berian’s legal team says Nike agreed with the language in its proposed contract to let Berian run in the Big Bear Track Club uniform in US competitions. We assumed that meant he would wear Big Bear logo on one shoulder and Nike on the other. But the lawyers say “In addition, and in any event, on Nike’s own theory and purported contract, Mr. Berian has every right to continue competing in New Balance gear,” so we think they are going to make the argument that New Balance is the official gear sponsor of Big Bear Track Club and he can wear the Big Bear TC singlet (featuring the NB logo) in US competitions. Below is a photo of Berian competing at the Prefontaine meet. Also below is the latest court filings.
Talk about this on our world famous fan forum / message board: MB: Official Discussion Thread For Boris Berian’s Contract Dispute
*MB: Wow: Nike’s mafia-themed party where LetsRun.com was allegedly one of 3 parties to be ‘hit ‘makes it into the WSJ
Boris Berian’s response:
Previous filings we hadn’t posted:
June 1st Temporary Restraining Order And Exhibits:
June 3rd Request For Preliminary Injunction And Expedited Discovery