Nike had an endorsement contract with Boris Berian, a middle-distance track star who is expected to make the US Olympic team. Nike had a right of first refusal with regard to new agreements. Berian presented an offer from rival footwear manufacturer, New Balance. There is a dispute as to whether Nike matched New Balance’s offer, and therefore whether the Nike contract is still in effect.

There is also a dispute as to whether Berian is presently endorsing New Balance. He alleges that he is not under contract with New Balance now, but Berian has been wearing New Balance footwear at recent events. He allegedly has been promoting NEW BALANCE via his social media accounts (for example, using a #nbrunning hashtag).

The U.S. Olympic Team Trials are in July, and the Rio Olympics in August, so Nike is seeking urgent relief.

I’m curious as to the exact relief requested. I can think of three different possible elements of a proposed injunction:

1. That Berian can’t endorse New Balance
2. That Berian can’t wear New Balance
3. That Berian must wear Nike

The attached motion refers to a draft TRO but I couldn’t find one in the docket. The motion states: ‘at a minimum, therefore, defendant is barred from entering an endorsement contract with New Balance.’ In the complaint, Nike requested that Berian be enjoined from ‘competing in or otherwise endorsing any Nike competitor’s product (including but not limited to, footwear and apparel). So Nike is equating an athlete competing in footwear with endorsing that footwear.

Just for the sake of argument – considering the arising from Berian merely competing in New Balance (apart from social media references and the like), how is that harm different from (as in more irreparable than) that caused to Nike by every other athlete who doesn’t wear Nike?

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