Nike, the wildly successful shoe and apparel company, says it will suffer "irreparable harm" if a promising middle-distance runner refuses to compete while wearing its iconic swoosh and has asked a U.S. District Court judge to sort out a contractual dispute.
In a highly unusual legal drama, that runner, 23-year-old Boris Berian, contends Nike is trying to sabotage his Olympic dream and his attorneys contend the company's litigation is "designed to hinder Mr. Berian's training and bully him into submission."
"Nike's purported concern with Mr. Berian's success seems highly disingenuous," the runner's attorneys argued in a recent court filing in the U.S. District Court of Oregon.
Just one month before the U.S. Olympic track and field trials, the two sides met in a courtroom in Portland on Tuesday, where U.S. District Judge Marco Hernandez granted Nike's request for a temporary restraining order, which will keep Berian from competing in New Balance gear or promoting the company until June 21, when the two sides are scheduled to meet again.
Barely two years removed from a job flipping burgers at a Colorado McDonald's, Berian's star has been rising, and he's considered a favorite to represent the United States at the Rio de Janeiro Olympics in the 800 meters, having recently won the IAAF world indoor championships and the Prefontaine Classic.
He has been competing this season wearing New Balance gear, even though Nike contends it has a deal with Berian.
Berian's attorneys told the judge that the runner would be pulling out of two events in June and would not compete again until the U.S. trials next month in Eugene, Oregon. Berian tweeted over the weekend: "Thank you @nike for trying to keep me from running."
So I'm being forced to scratch out of the rest of my races. Possibly even the trials smh. Thank you @nike for trying to keep me from running— Boris Berian (@borisgump800) June 3, 2016
"He did have a schedule that he has since canceled because of the stress of the litigation and the emotional burden that all of this is placing on him and how it's affecting his training," said Vincent C. Ewing, one of Berian's lawyers.
Berian said on a podcast interview last weekend that he was planning to compete at the trials. "My agent, he's definitely got a good plan right now. I'm not really worried about that," Berian told the "World's Greatest Athlete" podcast.
At the heart of the dispute: Did Nike sufficiently match a sponsorship offer from New Balance, a competing shoe and apparel company?
Berian was under a short-term contract with Nike last year, and the company had a right of first refusal on a contract for the current season. That gave Nike the option of matching any competitor's offer.
In January, Berian's agent, Merhawi Keflezighi, notified Nike of the New Balance offer, which called for a three-year contract worth at least $375,000, plus a variety of incentives and bonuses. Three days later, Nike told Keflezighi it would match the deal, according to court filings.
In mid-February, Nike sent over a more detailed contract that matched New Balance's offer but also included language on "reductions," which calls for a change in pay if an athlete fails to perform or struggles.
Nike contends reductions are standard in track and field contracts and says Berian failed to clarify or provide proof that they were not a part of New Balance's offer.
"Nike was not obligated to match terms that failed to appear in the New Balance Offer presented by Berian," the shoe company contends in its court filing.
Berian felt by adding reductions to the contract, Nike had not adequately matched New Balance's offer and informed Nike's representatives that the runner would not be staying with them. Berian's attorneys said in court filings that reductions are not industry standard and their absence was a key part of the New Balance proposal.
In Nike's view, Berian is still under contract with the Oregon-based company because Nike feels it sufficiently matched New Balance's offer and Berian has "ignored his contractual obligations" by competing in New Balance gear this season.
Berian has sported the New Balance logo at least five times this year and has actively promoted the company on social media. He has not yet entered into a contract with any shoe or apparel company, but New Balance does sponsor his club team.
In its court filing, Nike said "there is no question that Nike would be irreparably harmed" if Berian was allowed to compete in the Olympics or Olympic trials wearing New Balance shoes. His "participation and potential for success in these events make his endorsement a unique marketing and promotional opportunity," the company said in a court filing.
In its response to Nike, Berian's attorneys pointed out that the U.S. Olympic Committee has rules in place that forbid Berian and other athletes from participating in campaigns involving non-Olympic sponsors for the entirety of the Summer Games. Regardless of the legal wrangling, all U.S. athletes will be sporting the swoosh in Rio.
"If Mr. Berian makes it to the Olympics he will be training, competing and essentially living in Nike gear for the entire 2016 Summer Olympics - except for footwear - regardless of whether he is under contract with Nike, a Nike competitor or no one," Berian's lawyers argued.