Nike v. Berian

Last April, Nike USA, Inc. filed a complaint against Boris Berian, alleging that the defendant had breached an endorsement contract.

Nike alleged that parties had entered into a Track & Field Contract on June 17, 2015, that ended on December 31, 2015. During this term, Berian was exclusively obligated to endorse Nike athletic footwear and apparel. During the 60-day period before the expiration of the contract, Nike had an exclusive period to negotiate the renewal of the contract. After the exclusive negotiating period ended, Berian could negotiate with third parties. However, for 180 days after the contract expired, Berian had to submit to Nike any third-party offer he received and wanted to accept, and Nike then had 10 business days to “decide whether to enter into an agreement with Defendant on terms no less favorable than the ‘material, measurable and matchable terms’ contained in that third-party offer.”

Nike alleged that it received Defendant’s offer from New Balance on January 20, 2016. Nike then claimed that it exercised its right of first refusal on January 22, 2016 by sending a letter to defendant’s agent, Merhawi Keflezighi, stating that it would match the New Balance offer. Later, Keflezighi allegedly stated that Berian was not interested in resuming a relationship with Nike, and presented Nike with a revised New Balance offer. Nike asserted that its letter matching the original New Balance offer created a binding contract, and that Berian was no longer “free to go back to New Balance to try to get a different or better offer to present to Nike.”

Nike is seeking a declaratory judgment that it had entered into a new contract with Berian by exercising its right of first refusal, or that Defendant is obligated to execute an agreement with Nike on the terms contained in its match of the New Balance offer. Nike is also seeking injunctive relief that bars Berian from entering into another endorsement deal that would violate his contract with Nike.