Report: Nike Wins Restraining Order Against Berian

800 meter world indoor champion Boris Berian is legally barred from competing in New Balance footwear and apparel for the next fourteen days, thanks to the judge in ​Nike v. Berian ​granting Nike its request for a temporary restraining order.

The Orange Country Register's Scott Reid and LetsRun first reported the news.​

Oral arguments about the potential restraining order were heard on Tuesday. The restraining order is not posted, but publicly available court documents shed some light on the dispute that led the judge to grant the order.

New Balance general manager John Evans submitted a written statement aimed at rebutting Nike's claim that "[t]o date, Mr. Berian has never provided Nike with any evidence suggesting that the full contractual terms proposed by New Balance did not include such industry-standard reductions."

His affidavit states that New Balance's term sheet "did not include 'reduction' provision—a provision allowing New Balance to reduce Mr. Berian's compensation in the event he did not meet a specified level of performance—because New Balance had no intention of including one...New Balance does not, as a standard business practice, demand reduction provisions in its contracts with runners."

Here is the critical claim that Nike made in its response:

"Nike wrote Defendant’s agent, stating “Nike matches the New Balance Offer” as set forth in the term sheet provided on January 20. The letter also included a copy  [Merhawi Keflizighi] of the term sheet with “Nike” inserted in lieu of “New Balance” to confirm the match. And while the letter noted that the New Balance offer was silent on reductions and sought clarification of whether any material terms were omitted from the offer, it in no way indicated that Nike was not matching any such terms."

In other words: Hawi emailed Nike with the New Balance contract. Nike emailed him back the exact same document with the word "Nike" substituted for each use of "New Balance," but said "hey, where are the reductions?"

Nike claims that this constitutes matching, and therefore Berian is a Nike athlete. More worryingly for Berian's case, Nike writes in its filing that:

"In his Opposition, Defendant [Berian] spends much of the time arguing the merits, claiming that Nike failed to match the New Balance offer because Nike somehow included reductions in its response even though the matching term sheet it provided to Defendant on January 22, 2016 did not contain any reductions. But what is more astonishing is that while raising this defense, Defendant argues that Nike should not be permitted any document discovery whatsoever to explore its merits...Nike is therefore entitled to limited discovery to determine what exactly New Balance offered."

This restraining order likely exists to let Nike conduct discovery on Berian's offer from New Balance.

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