The Restraining Order That Nike Sought Against Boris Berian Is Now Out – Read It Here – Plus Under Penalty of Perjury Nick Symmonds, Jesse Williams and Sally Bergesen Support Berian
June 8, 2016
Earlier today, we reported an Oregon judge has given Nike the temporary restraining order (TRO) it was seeking in its lawsuit against Boris Berian: LRC Nike Is Granted Temporary Restraining Order In Its Lawsuit Against Boris Berian. We didn’t have the details of the order as it hadn’t been released yet. The minute order by Judge Hernandez is now out. We received a copy of it within the hour from a legal expert who also is a LetsRun.com visitor.
Here is the order:
ORDER: The Court adopts its oral rulings made in open court on 6/7/2016, and Plaintiff’s motion for Temporary Restraining Order 6 is granted. A temporary restraining order enjoining Defendant from endorsing or competing while wearing any competitor’s products until the June 21, 2016 preliminary injunction hearing will issue shortly; Plaintiff is directed to submit a proposed order consistent with the Court’s oral rulings and this Order as soon as possible. No bond is required.
Regarding the Affiliation Clause (Term VII of the New Balance offer), Plaintiff showed a likelihood of establishing the clause is unenforceable, at least to the extent that it would allow Defendant to wear Big Bear Track Club footwear and apparel bearing the logo or mark of New Balance. Given the timing of negotiations between the parties and the appearance of the New Balance logo on Big Bear Track Club footwear and apparel, it appears likely that the clause was designed to undermine Plaintiff’s contractual rights and expectations. See Oregon RSA No. 6, Inc. v. Castle Rock Cellular of Oregon Ltd. P’ship, 76 F.3d 1003, 1007 (9th Cir. 1996) (noting that every contract under Oregon law includes an implied covenant of good faith and fair dealing, and rejecting attempt to avoid right of first refusal provision through an “artifice intended to thwart plaintiff’s legitimate contractual expectation.”). Consistent with the Affiliation Clause, Defendant may wear Big Bear Track Club footwear and apparel that does not include the logo of any of Plaintiff’s competitors. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 06/08/2016)
What does it all mean? Well the legal expert that sent it to us provided the following explanation.
Obtaining a TRO isn’t that hard, and the tendency on the part of the bench is to enter a TRO and take a harder look at the evidence at the preliminary injunction stage. A TRO will stop any harm to the Plaintiff and, given its very short duration, is likely to have little harm to the Defendant. It’s a balancing test that skews in favor of the Plaintiff at the TRO stage and in favor of the Defendant at the PI stage. The fact that Judge Hernandez didn’t require Nike to post a bond might indicate that he didn’t think (or Berian didn’t prove) that Berian would suffer any harm in the short term. Note, too, that the specific language of the minute order permits Berian to wear.BBTC footwear and apparel, so long as it doesn’t bear any New Balance logo or mark, and in no way prohibits him from competing. I’m not familiar enough with the contracts in question (especially the “Affiliation Clause” referenced in the minute order) to comment on that part of the order.
Anyway, I hope that’s helpful. Thanks for all you do and say for this beautiful sport.
Also today, three declarations were filed in support of Boris Berian from Nick Symmonds, Jesse Williams (Sr. Global Sports Marketing Manager for Brooks Sports) and Sally Bergesen (CEO of Oiselle). Under penalty of perjury, Symmonds said that one of the reasons why he went to Brooks was they didn’t include any reductions in his contract, Williams said he’s never signed an athlete at Brooks to a contract that included revisions in 12+ years at Brooks and Bergesen said she also has signed athletes to contracts without revisions.
Their affidavits appear below:
Talk about the lawsuit on our world famous fan forum / messageboard: MB: Official Discussion Thread For Boris Berian’s Contract Dispute