Engaging speakers
In my experience, contracts with speakers don’t get as much attention as other contracts for a meeting. Considering everything that needs to be planned and coordinated, it’s easy to see why. Speaker agreements, though, involve a few issues you’re not as likely to see in other meetings contracts.Let’s examine what those legal issues are and prepare you to cover them.
Personal Service Contract Provisions
Speaker agreements are generally personal service contracts. This means beyond the fact that an organization is contracting with an individual to perform per the agreement, it’s imperative that the particular individual actually performs. For example, if you have contracted with the Queen of England to speak at a meeting, it won’t suffice if one of her distant cousins shows up in her place.This differs from many other agreements for services where a substitute performance that meets the contract requirements is acceptable. Consider the IT consultant or catering company staff. In those scenarios, if the job is done just as well, the names of the individuals performing won’t matter.
You need to consider the speaker agreement as a personal service contract and verify that your organization is prepared for undesired circumstances. What should happen if your speaker decides he or she wishes to breach the agreement? What should happen if your speaker falls ill or has a cancelled flight? Are certain replacement speakers acceptable?
The answers to these questions depend largely on the nature of your meeting and purpose of the speaker. Some agreements place the burden of finding an acceptable replacement on the original speaker (the replacement speaker, of course, must be satisfactory to the meeting organization). In some instances, courts may force a speaker to perform when money damages alone would not adequately remedy the harm of nonperformance. This depends, again, on the particular circumstances and the law in the governing jurisdiction.
Intellectual Property Infringement
Speakers generally give their presentations before the meeting sponsor has had an opportunity to review it. Since you have little or no opportunity to screen The material, the responsibility of intellectual property infringement must be placed on the speaker. Any speaker agreement should deal with this expressly.Not only should the content of the speech be the speaker’s own, but so should any presentation aids or handouts. If the speaker doesn’t own rights to all the content, he or she should instead warrant that necessary permissions have been obtained. Additionally, your speaker contract should address disparaging or violating the privacy of individuals or groups, otherwise violating the law, or endorsing particular goods or services without your permission. Again, the agreement should make it clear that all damages are the speaker’s sole responsibility.
Antitrust & Noncompetition Clauses
A particularly important content-based issue is antitrust. If your organization’s members or attendees are technically competitors, then you need an antitrust policy in place. Antitrust liability arises primarily when groups of competitors take certain actions together, resulting in a negative impact on competition. As complex as antitrust law can be, having and adhering to a good antitrust policy nearly always keeps you out of trouble. To make certain your organization isn’t later pinned with liability arising from a speaker’s anti-competitive statements, your antitrust policy should be provided to the speaker in advance of the meeting. Any good speaker agreement will require the speaker to review and abide by the antitrust policy. If the speaker hasn’t encountered antitrust law in the past, he or she may not know that particular topics are prohibited or create an appearance of wrongdoing, such as discussing salaries or suggesting a boycott against a certain supplier. The restrictions under antitrust law aren’t always intuitive. A well-drafted antitrust policy provided to the speaker in advance will go a long way in ensuring your speaker does not place your meeting’s activities under unwanted antitrust scrutiny.
My clients occasionally ask whether they can prohibit a speaker from also speaking for a competing organization. I understand their reasoning, but the legal implications of prohibiting competition are complex and often unclear. I don’t recommend it, but if my client wishes to prohibit a speaker from speaking for a competing organization in the next year or two, I will research the governing jurisdiction’s law to see whether this is possible.
Most states disfavor noncompetition clauses because they restrain trade and the freedom of the marketplace. Those states recognize, however, that there are circumstances where such a restraint is justifiable. You should be aware that noncompetition clauses are usually scrutinized and often invalidated by courts. Permissible noncompetition clauses are generally those drafted as narrowly as possible.
If you must have a noncompetition clause in your speaker agreement, it should clearly explain what constitutes a competitor and what particular geography the restraint pertains to, and only restrain competition for a reasonable duration. The general rule is a two-year restriction at a maximum, though again, this depends on the governing jurisdiction’s law. I recommend consulting with a lawyer to assist in drafting a noncompetition clause.
Armed with knowledge of the issues, you are prepared to ensure that future contracts are drafted to protect your organization as completely as possible.
Robert Summer, Esq. is a partner at Summer & Associates, .C. in Atlanta.
Action Steps
Drafting a Strong Speaker Agreement
–Make sure you have a contingency plan in place in case your speaker doesn’t show up, and build a replacement clause into your agreement.
–Place the responsibility of intellectual property infringement on the speaker.
–Provide a well-drafted antitrust policy to the speaker before your meeting.
