June 17, 2016
Today more filings came out in the Nike vs. Boris Berian lawsuit. Nike is suing the former McDonald’s worker/now world indoor champ Berian to force him into a contract that they claim is a match of a 3-year $125,000 per year offer that New Balance made to Berian.
Berian claims the Nike contract is far from a match as it was full of reductions where the New Balance contract guaranteed Berian a minimum of $375,000 over three years. Today, we finally got to see the list of reductions in the proposed Nike contract and they were substantial.
Today’s filing revealed the Nike contract included the following reduction/cancellation clauses:
- Nike had the right to reduce Berian’s contract by 50% if he competed in less than 6 USATF- or IAAF-sanctioned events in a given year (and 25% if he competed in less than 10).
- Nike had the right to reduce Berian’s contract by 20% if he wasn’t ranked in the top 10 in the world by Track and Field News.
- Nike had the right to reduce Berian’s contract by 25% if he didn’t compete in the Worlds or Olympics in a given year.
- Nike had the right to reduce Berian’s contract by 20% if he didn’t compete in or at least attend a press conference at either the Penn Relays or Prefontaine Classic.
- Nike had the right to totally terminate the contract if Berian, for any reason, failed to compete in a IAAF or USATF-sanctioned event IAAF- or USATF-sanctioned competition for one hundred and eighty (180) days or more.
- Nike had the right to terminate the contract if Berian died or became permanently disabled.
And those reductions could be added on top of each other. So say Berian was injured and only competed in 5 events and didn’t make the Olympics and wasn’t ranked in the op 10 in the World. Under such a scenario, Nike could reduce his contract by 95% (50+25+20) so instead of making a minimum of $125,000 he might have only made $6,250. You can read about the reductions here:
While the reduction information was the most salacious information to come out today, the most legally significant development was that Berian’s legal team filed its response opposing Nike’s request for a preliminary injunction to be issued when the next court hearing is held on June 21st.
You can read Berian’s full response below, but basically Berian argues that Nike clearly didn’t match New Balance as one contract had reductions and another didn’t, but he also argues that even if they matched he can’t be forced to race for a company he doesn’t want to as he had the right to simply not sign with anyone and wait until the end of June.
Here are a few points that we found most interesting in the Berian response.
Berian says he doesn’t want to have to be forced to wear Nike as he finds their shoes to be an inferior product to what New Balance offers. He says the first time he ever raced in Nike shoes was his USA debacle last year where he failed to make the final.
From today’s filing:
Nike wants this Court to tell an athlete—a world class runner—what shoes to wear at the Olympics and the Olympic Trials. Even in the context of extraordinary relief, this is an exceptional request. Mr. Berian has been training and racing in New Balance shoes this entire season, since January. In those shoes, he has done well, to say the least, winning both the U.S. Indoor Championship and the World Indoor Championship in the Men’s 800m. Now, Nike wants him forced into what he has determined to be inferior equipment for his feet, made by a company he does not want to support, which will reduce his chances for success in the series of races necessary to prevail at the Trials and the Olympics itself—what could be a once in a lifetime opportunity to represent his country and win on the biggest stage in track. A decade (or a century) from now, few outside the industry will remember or care whether Mr. Berian was wearing New Balance or Nike. But history will remember where he finishes.
Tellingly, in his first race as a Nike sponsored athlete, the 2015 US Outdoor Championships, Mr. Berian failed to make the 2015 World Championship team, even though he was the top ranked runner in the nation.
Berian’s legal team argues that Nike’s reduction clauses clearly aren’t industry standard as many of them weren’t in his 2015 contract. From today’s filing:
But, beyond its own executives bare say-so, Nike has made no attempt to show that these additional “Terms & Conditions” are “standard.” Nor are they, as Mr. Berian’s 2015 Contract shows
Berian’s legal team reiterated its argument that it believes Nike timed the lawsuit on purpose to disrupt Berian’s performance. From today’s filing:
Finally, Nike comes to Court with unclean hands. Nike’s decision to time this lawsuit and its motion for injunctive relief just as the track season peaked is grounds for denying the preliminary injunction, as discussed under the “balance of equities” below.
Today, also two declarations were also filed in support of Berian – one from his agent Merhawi Keflezighi and the other from New Balance’s John Evans.
You can read them below.
Talk about the lawsuit on our world famous fan forum / messageboard: MB: Official Discussion Thread For Boris Berian’s Contract Dispute.