This is the timeline of events according to sworn statements by Nike lawyers and employees:
-New Balance offers Berian a contract worth $125,000 a year without reductions
-Nike tells Berian and his agent Merhawi Keflezighi that they will match the contract, per their rights
-Nike sends Berian a long-form contract that includes onerous reductions
Here's where it gets sticky: Berian and Keflezighi did not respond to numerous Nike requests for clarification on New Balance's lack of reductions, which was essentially their legal tactic for eventually claiming Nike did not match the New Balance offer. Once the lawsuit compelled them to do so, Berian's camp obtained a statement from New Balance's John Evans: "New Balance does not, as a standard business practice, demand reduction provisions in its contracts with runners."
Nike claims that if Keflezighi or Berian had responded before then, it would have removed the reductions from its offer to Berian. From today's filings:
"Because Defendant’s agent had failed to list the lack of standard reductions on the New Balance Offer or otherwise offer evidence beyond his own cover note regarding reductions, Nike included them in the proposed form of contract, but that in no way undermined its commitment to match the New Balance Offer, regardless of whether it included reductions...
It is telling that when push came to shove and Defendant needed a sworn declaration from New Balance regarding reductions for this litigation, he easily obtained one. Had Defendant’s agent done so when Nike requested it in January 2016, Nike would have conceded at that point that the New Balance offer was reduction-free."
The shoe company claims the lack of response from Berian and Keflezighi was part of a plan to sign with New Balance:
"After asking for clarification on the reductions issue, Nike waited three full weeks for Defendant to provide written confirmation from New Balance that reductions were intentionally excluded from the Offer... During this time, though getting the requested information from New Balance would have been 'very easy,' Mr. Keflezighi failed to do so, because his goal was to get Defendant out of his obligations to Nike."
Nike also used its discovery to turn up some fairly damning communication from Berian's side:
"Moreover, until he retained counsel in April, Defendant never informed Nike that he believed it failed to match the New Balance Offer. In fact, Defendant treated the January 22 letter as a match of the New Balance Offer. After receiving Nike’s letter on the afternoon of January 22, Mr. Keflezighi texted Mr. Evans of New Balance: 'I just got an email from Nike. It looks like they want to match the offer.'"
The question to be answered tomorrow is if Nike's repeatedly stated intent to match the New Balance deal trumps the fact that they never figured out the New Balance deal had no reductions—it's unclear whose legal arguments are stronger. But the Berian camp's seem novel, as Nike prevailed in front of the same Portland court in a similar dispute with then-Minnesota Vikings quarterback Daunte Culpepper. He tried to sign with Reebok in 2002, and was successfully sued by Nike over a right-to-match question.
Here's what's at stake: Berian's coach Carlos Handler told the Associated Press that Berian would rather retire than run for Nike again.
The hearing is tomorrow at 2:00PM PT. Read today's three new documents below in full.
Previously, in Nike v. Berian:
Boris Berian Gets Served By Nike for Breach of Contract
Nike Seeks Federal Court Order to Stop Nike From Wearing New Balance
Report: Nike Wins Restraining Order Against Berian
Boris, Nike Approaching Potential Resolution?
Nike Offered Berian Reduction-Laden Contract
Ben Cesar Declaration
Nike Lawyer Declaration