What does the termination of a contract do to certain intellectual property rights that were granted, in perpetuity, from one party to another within that document? A recent ruling in the U.S. Southern District of New York can be instructive on this issue.
Jim Tomsula is credited as being a defensive wizard in NFL circles. The defensive line coach for the Washington Redskins was integral in turning around the club’s defense in 2017. Prior to that, he served in a variety of positions, including as head coach of the San Francisco 49ers from 2015-16.
It was a short stint for Tomsula with the 49ers, but as is the case for all coaches, he was bound by a contract with the team. And the team was bound to perform according to the contract.
In January 2017, Tomsula was referred to Heitner Legal to assist the coach with getting all the money due to him from the 49ers. The 49ers owed Tomsula severance compensation to be set-off by his new deal with the Redskins. In a letter, we noted that 49ers CEO/owner Jed York further recognized the compensation due in a statement wherein he said, “I would say this; we’ve got several years of Jimmy T’s salary left and we’re going to eat it. Whether he’s coaching somewhere else or not, we owe him that. That’s not a concern.”
After a bit of negotiation, we were able to resolve the matter with the 49ers, without litigation, and allow Tomsula to move on to only thinking about how he could improve the Redskins’ defense.
Sponsorship does not begin and end with procurement. An often bypassed, but extremely important part of securing a sponsorship is the legal construction of same. Sometimes these deals, big and small, are wrapped up with a handshake. Other times, with a thorough, long-form contract.
At Heitner Legal, we always encourage memorializing a deal in writing and with as much specificity as possible. Spending a little bit up money up-front can save you a lot of money on the back-end. Additionally, should something unforeseen arise, then you should have the luxury of relying on the terms of an agreement that you have reduced to writing.
As a lawyer frequently drafting and negotiating sponsorship contracts, I have seen many shifts over the past few years. The most glaring change has been at first the inclusion of social media obligations, which changed to social media being a material clause. Today, there are some contracts that are solely dedicated to social media deliverables. It is hard to find any documents in the sponsorship space that do not at least devote a few lines to social media.
Look for brands in 2017 to focus more on figuring out a formula to better determine return on investments in this Internet and mobile dominated world. Additionally, expect activation to become a larger component of the overall sponsorship equation.
The University of Florida’s O’Connell Center has brokered its first naming rights deal. The arena will re-open in mid-December 2016 with Exactech as the naming rights sponsor.
Kevin Brockway of The Gainesville Sun asked UF and UF Levin College of Law graduate Darren Heitner for commentary on the deal.
Naming rights deals on stadiums and arenas serve different purposes for different companies, according to sports business and legal expert Darren Heitner.
“We all know naming rights deals as simply slapping a brand’s name on a stadium or an arena but there’s a lot that goes into it,” said Heitner, a sports and entertainment lawyer and Florida Levin School of Law graduate. “The agreements have to address the scope of the definition of the deal and have endgame provisions. There are a lot of clauses that go into these deals that also determine the extent of the sponsorship, what categories it covers, in addition to simply having the name on the stadium or the arena, how it’s even phrased, which can be very important.”
Heitner said it’s often tough to tell whether companies get “bang for their buck” when it comes to putting names on sports complexes. In Miami, for example, Joe Robbie Stadium has undergone a number of corporate name changes, from Pro Player to Landshark to Sun Life, in its 29-year history. San Diego State changed the sponsorship agreement of its arena agreement, from Cox Cable to Viejas Casino, in 2009.
“Various brands have various strategies with regards to naming rights,” Heitner said. “For some it’s simply having the brand exposure out there, others may be more interested in using the naming rights as a way to have more participation and more interactivity with the local community, and I think that’s probably more of the case here.”
Kyle Bauer has long worked in the fitness industry and recently founded ReNew You, a fitness club in Houston, Texas. But now his former employer, the nationwide fitness chain Life Time Fitness Inc., is coming after him for allegedly misappropriating trade secrets as well as for breach of fiduciary duty, breach of contract, and tortious interference with contracts. On January 19, 2016, the fitness chain filed a lawsuit against Bauer in the United States District Court for the Southern District of Texas.
Bauer was hired by Life Time Fitness in 2010 as a Regional Vice President in a deal that also included the company paying $5.4 million to purchase a fitness club that Bauer owned in Texas. He worked for five years as the Regional Vice President in charge of overseeing twenty-five fitness clubs in the states of Texas, Georgia, and Alabama. However, according to Life Time Fitness, Bauer was using this opportunity to steal the company’s trade secrets, including its business plans, service menus, and pricing models, in order to start another fitness chain of his own. Life Time Fitness claims that this misappropriation of trade secrets constitutes a violation of both Texas state law and the Computer Fraud and Abuse Act, a federal statute.
Life Time Fitness also alleges that Bauer engaged in various activities that constitute a breach of fiduciary duty. Every employment relationship contains an implied fiduciary duty that is owed by the employee to serve his or her employer with good faith and loyalty. Bauer is accused of failing to meet the loyalty component of this duty. The company states that Bauer used Life Time Fitness’s computers and resources to prepare business plans, negotiate with future employees, conduct financial transactions for his new business, design a new logo, and draft documents outlining employee benefits for ReNew You. They also claim that Bauer improperly solicited a Dr. R. Scott Yarish to partner with him at his new club during a time at which both were employed by Life Time Fitness. The duty of loyalty prohibits employees from soliciting co-workers to leave their current employer in order to work for them in the future.
Bauer is also accused of breach of contract based upon the non-compete agreements that Life Time Fitness included in his employment contract. Non-compete agreements limit the ability of an employee to enter into another job, for a defined period of time, where they would compete with their current employer. Bauer had signed such an agreement that forbade him from competing with Life Time Fitness for a period of three years after his employment with them ended. Such agreements are somewhat controversial and treated much differently in different states. California, for example, has nearly outlawed the provisions, while most other states will tolerate them so long as the restrictions are narrowly construed in terms of the time, geographic area, and scope of industry in which the employee is forbidden from competing. At this stage in the proceedings, it is unclear whether or not the Texas federal court will uphold the non-compete clause in Bauer’s employment contract. Bauer will likely need to demonstrate that the clause was overly broad based on one of the three dimensions previously discussed: time, area, and scope.
The tortious interference claims stem from Bauer’s relationship with Dr. R. Scott Yarish. As Regional Vice President at Life Time Fitness, one of Bauer’s responsibilities was to negotiate an extension of Yarish’s employment contract with Life Time Fitness. At the time, Bauer informed the company that Yarish was not interested in extending his contract. Now that the two are partners with their own fitness club venture, Life Time Fitness is accusing Bauer of tortious interference with prospective contracts and tortious interference with existing contracts.
Many employees envision leveraging the knowledge, experience, and contacts that they have developed in an industry to strike out on their own and start a company. However, they must be careful when engaging in such ventures to protect themselves from the potential liability that Kyle Bauer now faces. Starting a new business is exciting, but facing a lawsuit in federal court is a quick way to dampen the mood.
Russell Okung, All-Pro left tackle, made news by announcing that he had fired his agent and would be negotiating his next contract without agent representation. Okung is set to become a free agent next offseason and figures to have a long list of suitors including his current team, the Seattle Seahawks. Okung says, “I know my worth. I can look at the market and go directly to a team without an agent and tell that team my worth. And I can do so with confidence because I’ve done my research, I’ve educated myself and I’ve questioned the answers I’ve been given.” In place of an agent, Okung will hire a sports attorney to review the new deal and will pay a one-time flat fee not dependent on his salary. The decision by Okung to negotiate his next contract without agent representation potentially saves him millions of dollars. The maximum commission to have an agent negotiate his contract would be 3%. If Okung had retained his agent at the 2.5% he was paid for his first contract when he was drafted and Okung signed a multi-year deal for the average salary of a top 5 tackle, then his agent could be receiving north of $1 million. Okung represents the new wave of athlete who is a businessman and a brand on top of being an athlete. Okung says, “You see, there’s a new sort of athlete, and he’s not just an athlete. He’s a businessman and a living brand, a la Magic Johnson or LeBron James. He’s a player who represents himself because he not only understands the market and his own personal value, but has the self-assurance and financial know-how to do so, too.” Okung understands his decision to represent himself isn’t for everyone, but is leading the charge for players to “free their agents.” Okung does not believe that 2.5% is worth what agents provide. New York Giants running back Rashad Jennings is also pushing for players to negotiate their own contracts. At Heitner Legal, we excel at negotiating and drafting contracts and understand the dynamics involved in contracts such as professional sports contracts, endorsement agreements, licensing agreements, and entertainment contracts. We can guide anyone through the process of negotiating a contract and reviewing it to ensure our clients not only earn their value but are protected from potential liabilities as well. Resources: Darin Gantt, Russell Okung wants to test free agency without an agent, Pro Football Talk (Jul. 20, 2015, 2:08pm), http://profootballtalk.nbcsports.com/2015/07/20/russell-okung-wants-to-test-free-agency-without-an-agent/ Ari Gilberg, A former NFL 1st-round pick explains why he fired his agent and will represent himself as a free agent, Business Insider (Jul. 21, 2015, 9:19am), http://www.businessinsider.com/russell-okung-will-represent-himself-as-a-free-agent-2015-7
While American law is less than 250 years old, some of the expressions used in the U.S. legal system come from a time much older. Latin phrases, such as per stirpes, malum in se, malum prohibitum, and de facto are all still used in American law today. Another such phrase, pari passu, is used as legal terminology, and can play an important role in complex transactions.
Translated literally, pari passu means “with an equal step” or “on equal footing”. It is commonly used in law, and is defined in Black’s Law Dictionary as “proportionally; at an equal pace; without preference”. The term is most relevant in matters relating to estate planning and finance.
Pari passu is important to understand, because it can have dire effects on complex transactions that can affect how creditors are paid. An example of pari passu occurs during bankruptcy proceedings. When a verdict is reached, all creditors can be regarded equally, and will be repaid at the same time and at the same fractional amount as all other creditors.
The purpose of pari passu is to ensure that borrowers neither have nor subsequently create a class of creditors whose claims rank legally senior to the indebtedness represented by the loan agreement. New creditors are naturally concerned about whether senior creditors have a first call upon the borrower’s debt payments or, in the event of the borrower’s bankruptcy, enjoy a priority in the distribution of the borrower’s assets. A pari passu clause can help ease these concerns.
For lenders, a pari passu clause is essentially a conversation starter. Before most lenders make a loan, they will want to know of the existence of any legally superior lenders whose claims will rank higher than theirs. If a lender discovers such superior lenders after the money has been lent, the false representation will provide a basis for calling the loan. Additionally, a pari passu clause protects a lender against the involuntary subordination of its loan.
For borrowers, a pari passu provision is rarely controversial. The borrower’s principal objectives in negotiating this kind of clause are to ensure its accuracy and to limit the constraint it may impose upon the borrower’s future debt servicing behavior. At the very least, both sides should agree that the new loan should rank equally with the borrower’s other debts.
Regardless of one’s role in a transaction, a pari passu clause can be troublesome if not approached properly. At HEITNER LEGAL we can guide you through the intricacies of complex transactions and intimidating terms in contracts, like pari passu. Additionally, we can draft documents for you to help in any transactions you may be engaged in.
Black’s Law Dictionary (9th ed. 2009)
Transactions in the equine industry often involve animals worth thousands, if not hundreds of thousands of dollars. These transactions get especially daunting in the world of equine sports; the average selling price of a horse at the Keeneland September Yearling Sale – the nation’s premiere Thoroughbred auction – was $130,780, with 18 yearlings selling for $1 million or more.
While most horse buyers aren’t looking to purchase a horse worth as much as a home, they may be looking for a horse to play the equestrian sport of polo. Polo ponies are not as costly as premiere racehorses, but ponies that are suitable for low to medium post play can still range from $15,000 to $35,000 or more. Intuitively, one would think that these transactions involve piles of paperwork, lengthy negotiations, and the parties having a clear understanding of what rights are changing hands. For many of these transactions, this is not the case, and the sales are only memorialized with a handshake. Unfortunately for many buyers and sellers in the equine industry, these handshake transactions can have dire consequences.
In order to avoid the risks inherent in engaging in handshake transactions, buyers and sellers in the horse industry should seek and expect written contracts in transactions involving these large, valuable animals. Written contracts can protect both buyers and sellers in the horse industry, yet the same people who save receipts from buying horse feed have no papers to memorialize an agreement to buy a horse.
While a written contract cannot completely prevent any disputes from occurring, legal disputes become much more expensive to resolve and less manageable when a written contract is not available to interpret.
Contracts involving the sale and purchase of horses are important, and an equine sale contract should at least include six main components:
- The names, addresses, and contact information of the buyer, seller, and sales agent (if any);
- A clear description of the horse sold;
- A promise that the seller owns the horse and has the legal authority to sell it to the buyer;
- The full purchase price;
- The date the seller was paid; and
- That the seller was paid in full (or the remaining sum that is due and when it must be paid).
Veterinary history is another important factor that horse buyers should ask to have included in a contract, since it can be difficult to prove that a seller made any promises with regards to the animal’s veterinary history, and any vices or bad habits the horse may have.
In addition to the points outlined above, another vital clause to include in equine contracts is the horse’s ability to breed and the transfer or retention of breeding rights. There has been confusion over what law should govern the sale of breeding rights, and this confusion can lead to litigation with unanticipated results. Depending on the circumstances of the agreement, a breeding right could be characterized as either a good or a general intangible, which impacts the applicability of Article 2 of the Uniform Commercial Code (UCC) and other sources of law.
Given the high prices of equine breeding rights and other transactions, these dealings often rely on credit to run smoothly, and such agreements should be transacted in writing. Typical sources of credit in the horse industry are either directly from the seller or from a third party, such as a bank. Therefore, execution of promissory notes and the granting of collateral to the lender under Article 9 of the UCC are both quite common. In order to ensure that all of the value of the equine collateral will be available to satisfy the security interest, lenders in these cases should seek a security interest in additional collateral, such as the born or unborn offspring of the horse, all contract rights and general intangibles of the debtor pertaining to the horse, racing income, breeder’s awards, and other income related to the horse, breeder’s certificates pertaining to the horse, and all other proceeds and products of the horse.
In order to avoid costly litigation over the terms of an unwritten agreement, equestrian transactions should be written down and recorded. These high-priced agreements are prone to disputes, and the absence of a written contract only amplifies these concerns. It is time for the equine industry to finally buck the trend of transacting business while relying on a simple handshake. Heitner Legal, with its wealth of experience regarding contracts, negotiations and dealings in the world of Sports Law, is happy to help.
Robert Frank, Horse Cents: Racehorse Prices Back on the Run, CNBC.com (Sep. 20, 2013, 10:53 AM), http://www.cnbc.com/id/101050384.
Julie I. Freshtman, Horse Sales Disputes Waiting to Happen, The Equine Chronicle (Aug. 31, 2013), http://www.equinechronicle.com/horse-sales-disputes-waiting-to-happen/.
John J. Kroppa, J. Jeffrey Landen, & Daniel C. Heyd, Horse Sense and the UCC: The Purchase of Racehorses, 1 Marq. Sports L.J. 171 (1991).
Melissa Zeller, Beyond the Handshake Deal, United States Eventing Association (Mar. 16, 2010, 8:31 PM), http://useventing.com/news/beyond-handshake-deal.
HEITNER LEGAL was honored to be retained by Moves Magazine to assist with the negotiation of contracts surrounding the event described below. Successfully negotiated contracts were entered into with the venue as well as live performers The Ting Tings and DJ Grandmaster Flash.
Moves magazine announced today that Grammy-nominated pop rockers The Ting Tings will perform at the Moves magazine Kick-Off Party on Wed., Jan. 28 in Scottsdale, Ariz. The award-winning British duo, comprised of Katie White and Jules de Martino, will join hip-hop pioneer, Grammy winner and Rock & Roll Hall of Fame inductee Grandmaster Flash as the headline entertainment for the much-anticipated return of the magazine’s annual Wednesday night party. Hosted by former NFL All-Pro linebacker turned film director Simeon Rice, the event will be held at the retro-chic Hotel Valley Ho, the swanky getaway for 1950’s Hollywood, located in Scottsdale’s downtown arts district.
The Ting Tings, who recently released their third studio album, “Super Critical,” have been a favorite on the British music festival scene since 2008, when their album, “We Started Nothing,” hit number one in the U.K. White and de Martino crashed the party in the U.S. in 2009 when The Ting Tings were nominated for Best New Artist at the 52nd Grammy Awards. Their star continued to rise in 2010 when they appeared as the featured musical guests on Saturday Night Live. The duo, who have lived and recorded in Berlin,Paris, Ibiza and New York City, and worked with producers such as DJ Calvin Harris, have charted five singles on the UK Top 40 and topped the Billboard dance chart in the U.S. The video for their single, “That’s Not My Name,” has been viewed more than 34 million times on YouTube.
Moves magazine, formerly known as the premier publication for professional athletes, has evolved under new ownership, relaunching as a diversified media company covering the luxury lifestyles of athletes, entertainers and influential tastemakers. This year’s party, dubbed “Night Moves,” celebrates the official launch of movesmagazine.com, and promises a return to the energy and late-night revelry of its infamous Wednesday night parties that have been one of the hottest tickets during pro football’s biggest week over the past decade.
“Moves has had a decade-long tradition of kicking off the festivities with a party on Wednesday night that people talked about all week,” said Moves CEO and publisher Jay Levy. “We are taking that to the next level with the energy and excitement of the Ting Tings, not to mention the legendary Grandmaster Flash as well as other surprise guests that will put this party in a category by itself.”
Moves Editor-in Chief Kelli Fabian said the vibe for the bash will be a chic, intelligent throwback to the decadence of the 80s, the heyday of Studio 54 and the renegade artistic spirit of Warhol and Basquiat. New York-based creative juggernaut Dimitri Falk will oversee the experiential design and atmospherics reflective of the Moves brand, providing a provocative look inside the celebrity culture of sports and entertainment.
“The worlds of entertainment, sports, media and celebrity have converged, and Moves is at the heart of it,” said Fabian. “This brand is all about the lifestyle enjoyed by professionals who are at the top of their games, and our party will have all the style, exuberance and sex appeal that comes along with it.”
Event host Simeon Rice, a Phoenix resident, was a member of the 2003 Super Bowl Champion Tampa Bay Buccaneers. He recently directed his first feature film, the suspense thriller, Unsullied. The Moves party on Jan. 28 will feature an exclusive preview of the film at the Hotel Valley Ho as part of the night’s sensory overload.
Moves correspondents will be conducting red carpet interviews and gathering video content for the website during the party and throughout the week. Currently in beta, the site is accepting advertising and will officially go live prior to the big game on Feb. 1. Editorial and executive offices for Moves are located in Miami, with sales and marketing teams based in Miami, New York City and Los Angeles.
A limited number of general admission and VIP tickets, as well as red carpet access VIP tables with bottle service, are available for purchase at www.movesparty.com.
DraftKings, Inc., the largest U.S.-based destination for daily fantasy sports, today unveiled Daily Fantasy MMA, the biggest daily fantasy contest for mixed martial arts. The company also announced an exclusive marketing partnership with light heavyweight champion Jon “Bones” Jones. To celebrate the launch, DraftKings is offering its players a chance to win a once-in-a-lifetime experience with Jones, including an opportunity to meet the champion in person as part of an all-expense paid trip to UFC 183 on January 31st.
DraftKings continues to be a pioneer in the daily fantasy sports industry, providing fans with a variety of contests across more leagues and sports than any other fantasy destination. The launch of Daily Fantasy MMA is the latest innovation, tapping one of the largest, fastest-growing fan bases among major sports.
“DraftKings is committed to creating programs to engage new fans in untapped sports markets. MMA is the perfect combination of action and scoring, making it a great opportunity to bring into the daily fantasy family of games,” said Paul Liberman, CMO and co-founder of DraftKings. “As exciting as the new game is our partnership with the champ, Jon ‘Bones’ Jones. He’s emerged as one of the greatest fighters in MMA history – we’re proud to have him on our side.”
HEITNER LEGAL and Jon Jones’ manager, Malki Kawa of First Round Management, represented Jones in negotiating his partnership with DraftKings.