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  1. #1
    Join Date
    Nov 2004

    Default Voiding a Non-Compete Contract

    Hello, I am glad I found this forum.

    I am a storm chaser and shoot extreme weather video on a regular basis. On 3/8/2003 I entered into an agreement with an agency that represents a number of "stringers" as we are known. As you can imagine, there is a limited market for our video, primarily The Weather Channel, the major news networks, and a handful of production companies that produce some of the programs you see on cable television from time to time.

    I shoot good video and my name has become known to various producers of these places as one to get good video from.

    As a result of my contract with this one particular brokering agency, I am bound to broker my video through them, in which they receive 25% off the top of the licensing fees and forward the remaining fees to me. As part of the contract, I retain all copyrights to my works, and we only license this stuff out for a limited period of time, usually 10 days.

    As also part of the contract, this agency is supposed to pay us our remaining 75% within 48hrs of the time they receive it from one of the networks.

    Also as part of this contract, I had to sign a non-competition agreement that extends one year from the time I stop working with them.

    Now I get into my problem......

    I have had growing concerns over the course of this year that I may have been misled by the owner (the person I deal with almost exclusively) as to how much he is really licensing my video for, and thus not paying me my proper 75%. Something I can't prove obviously.

    Additionally, it has always been like pulling teeth to get paid, and I have always suspected that he was receiving the money and dragging his feet paying me. It was so bad to the point I had to make up some catastrophe in my life I needed the money for just to get paid. Sometimes it has taken literally months to get paid on a video.

    One case in point was one I shot on 5/22/04 that I did not receive the final compensation on until October. And then he paid it out a little here and a little there, and I know for a fact this is NOT how the networks pay him for our stuff.

    I finally discovered this to be true on the last thing, when he called and said he had gotten paid on one and would have it to me in 2 days. More than a week went by and I still did not see it. He was unavailable by phone and did not return emails. In about 2 weeks time he finally got back with me after I wrote him a rather mad email. He claimed to have been stuck in Florida during the hurricanes and was unable to do anthing, but he in fact was down there marketing his own hurricane video. I also saw him posting to various email lists and message boards, so I know he had communication access and was just avoiding me.

    Due to this I finally decided he violated his own contract by not paying me within 48 hrs. On top of that, I have discovered that on at least two occasions he has in fact claimed to own the copyright of my video, something that is specifically stated remaining with me in his contracts. For this reason I refuse to license any more video through him as I do not trust him.

    This contract expires 12/31/04. However, with the non-compete agreement I am effectively locked out of making a living for the next year or so, being the very limited nature of the market. The non-compete agreement is very broad, stating this:

    "In consideration of employment given, Contractor convenants that during the term of Contractor's service with ****, and for a period of 12 months following the termination of service with ****, Contractor shall not directly or indirectly, acting individually or on behalf of another person, firm, corporation, partnership, joint venture, association or other entity whatsoever, enter into employment of or render any services, whether directly or indirectly, to any person, firm, corporation, partnership or entity of any kind which is a current or anticipated client of **** for which/whom Contractor performed services."
    Then it has some other stuff about enticing other employees to work for me etc. and ends up stating it shall be governed by Minnesota law (where this guy lives). I live in Texas.

    I am certainly no lawyer, but this seems rather broad, and an attempt to corner the market and shut out any competition. In fact, he has signed up a pretty good number of other storm chasers effectively doing just that. There is not THAT many of us.

    I guess my question is... Can he really enforce this? It completely prevents me from earning a living by licensing out my video. I am having producers contacting me on a weekly basis for video, based on my reputation. Additionally, even if I could do something else for income for a year, this business is a strange one and you really need to have your name known to be successful in regularly licensing your video. A year off would certainly damage that notoriety with various producers which would also hurt my income potential.

    Not only that, I have asked him on several occasions for a list of his clients so I could avoid licensing video to them. He just tells me, "unless it's some unheardof production company, consider them a client of ****."

    Could I consider the contract void since he violated his own contract by not paying me within the 48 hr period? Also, if that were the case and it is void, would it also void the non-compete.

    I should point out that even though he would like to think so, we used nothing proprietary or secret in the course of our business of shooting, editing and sending out video from the field (via internet). Many people that do not license through him do the same directly with the networks.

    Any comments or advice is appreciated. Thanks for reading!

  2. #2
    Join Date
    Sep 2004

    Default Noncompetes in Texas

    It is my understanding that Texas is a good place for you to be. That is, I understand that Texas has in the past refused to honor language in non-competition agreements that they are to be decided under the laws of other states, choosing instead to apply Texas law. Also, it is my understanding that Texas has refused to honor choice of forum language in relation to noncompetes (e.g., "All disputes under this contract will be resolved in the courts of the State of Minnesota"), and has permitted employees to litigate their validity in the Texas courts. Finally, I understand that Texas has issued injunctions preventing the former employer from commencing litigation in the state where the contract was made.

    Texas is also fierce about "the unauthorized practice of law" - that is, the Texas bar doesn't much care for lawyers who aren't licensed in Texas to give anything approaching legal advice on a Texas legal matter. It would thus be in your best interest to consult with a Texas employment law firm about how a Texas court is likely to treat your non-competition agreement, and consider preemptive litigation in Texas so as to permit your continued employment in the event that you break ties with your unreliable agency.

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