Non-Compete in a cover band

troy mcclure · #1 10-31-2009, 05:47 PM

I am joining an established cover band booked through the end of 2010 and the leader has asked me t sign a non compete contract. I read it over, it only states I can't:
steal gigs if I leave,
leave without a 4 gig notice
try and replace him and continue running the band.

I have no problem with this, just find it odd..he said other past members made it necessary.

Anyone object to this?

steveksux · #2 10-31-2009, 05:53 PM

Not that. Kind of weird. Probably unenforceable. Legally might hold up, but if he doesn't have the resources to sue you over it, its not worth the paper its printed on.

Have to wonder if its his behavior precipitating these sorts of things... He's the bandleader, owns the pa system cause its the only way he can get guys to play with him.

Randy

UncleFluffy · #3 10-31-2009, 06:03 PM

how clearly defined is "stealing gigs" ? ... I'd be careful with that one unless it's nailed down exactly what it means.

Non-competes can be hard to enforce, but you're much better off not even getting to that point.

troy mcclure · #4 10-31-2009, 06:07 PM

Gigs on the books for that particulr band, does not prevent me from playing in another band at the same venue. The bass player I am replacing told me he is leaving because he wants to sing lead and he has an opportunity to do so. He gave 2 months notice, I have been to about 5 gigs and sat in with them as I learned the songs.

Febs · #5 10-31-2009, 06:08 PM

That's not really a non-compete agreement. While I would have to look at the exact language of the contract he is proposing, the only one of those items that strikes me as potentially troublesome is the 4 gig notice because it vague. It is perfectly reasonable to request notice if you're going to leave the band, but what happens if you find yourself in a situation where the reason you want to leave is that the band is not working much?

LilRay · #6 10-31-2009, 06:11 PM

Sounds strange to me. "Stealing" gigs (As Fluffy says) could be defined as playing the same venue on another night not normally allocated to his band. Seems uber paranoid whiny, and unprofessional to me. The way I look at it, If I hire a band member and he gets gigs that should be mine, I'm doing my job poorly. If I get smoked, It's my fault.

God Bless, Ray

UncleFluffy · #7 10-31-2009, 06:12 PM

Quote:

Originally Posted by Febs

That's not really a non-compete agreement. While I would have to look at the exact language of the contract he is proposing, the only one of those items that strikes me as potentially troublesome is the 4 gig notice because it vague. It is perfectly reasonable to request notice if you're going to leave the band, but what happens if you find yourself in a situation where the reason you want to leave is that the band is not working much?

Good point. Negotiate for "4 gigs or X weeks" ?

Stinsok · #8 10-31-2009, 06:42 PM

I wouldn't sign it. If you are in the same town you can't help but compete. I have a friend that left a sales position for one in a direct competitor. He had signed a no compete agreement, but felt he couldn't stay where he was at. His former company threatened him with legal action but really couldn't do much about it. Alabama is a "right to work" state.

Renaissance · #9 10-31-2009, 06:52 PM

Generally non-competes protect the employer from an employee stealing trade secrets or proprietary information. Having a musician sign a non-compete is IMHO kinda silly and reeks of a lack of confidence on his part. To me stealing the gigs is unethical but hardly enforcable with a non-compete.

A 4 gig notice? States vary, but SC is a work-at-will state. I can fire you at anytime with or without cause and you can quit at anytime with or without notice. Again, a non-compete isn't worth much in this case.

If I were you I would tell the bandleader you're not signing. He treats you fair and ethically and you will do the same. If not signing means no gig - sign the paper. It's probably worthless.

Mind you I'm not an attorney so this is all just my opinion.

UncleFluffy · #10 10-31-2009, 06:57 PM

A lot of this depends if you're creating an employer/employee relationship or an independent contractor relationship. Odds are, whichever it is, you're safe from anything except hassle. But to be sure talk to an attorney in your own state.

Revvv · #11 10-31-2009, 07:12 PM

For me to sign that would include a check of a substantial amount each and every week. It would have to be a job, and they would have to be held to the same standards.

Personally, I would tell them to talk to me when they reach a record deal and touring contract with a reputable label. The band leader is a whiner and has self confidence issues. He is trying to hide these issues by being a bully of sorts. He isn't going anywhere anytime soon.

ChrisB2 · #12 10-31-2009, 07:59 PM

I think the key phrase is "established cover band booked through the end of 2010."

Sounds like the bandleader actually has something worth protecting (which he is trying to do), as opposed to the typical casual bar band.

If it were a sweet gig with good venues and decent pay, I'd sign it. Why not? The guy's only asking that you not steal his gigs or his band. I'm sure you have no intention of doing that. And what's four gigs if you want to leave? You'd probably do that even without a contract if he asked you to.

I say just do it, you'll be fine...

ForSix · #13 10-31-2009, 09:25 PM

I've been playing for 50 years and have been selling for a living for 35 years.

I've never signed a non-compete agreement. The only outfits that have asked me to sign them were in shaky financial shape.

seanm · #14 10-31-2009, 09:47 PM

If it is a good gig, I would sign that. Doesn't look too bad.

azureblue · #15 10-31-2009, 10:08 PM

Take the easy way out and put the ball back in his court: say you'd be happy to sign it, but the terms are legally ambiguous (what is a "gig", define "steal" a gig), so, for both his sake and yours, he should take the NC agreement to an attorney and have it properly written.

What the guy wants you to sign is reasonable, but not well put, according to how you relate it here. I see what he is getting at, and maybe he wants to prevent a re-occurrence of something that happened to him in the past, but he really needs to tighten up that agreement, if he wants to make it binding. Essentially, he wants you to sign an employment contract. If he asks you what you find troublesome, you can tell him that the departure terms are too loose- that should be stated in weeks, not number of gigs, like a six week notice. And you will perform to the best of your ability and professionalism during those final six weeks, and not do or say anything that will reflect badly upon the band or yourself. You will not book any gigs under that band's name or represent yourself as an agent of that band, and you will not book any gigs for yourself that involve the use of more than three other members of that band. And you will not start or participate in a coup d' etat or mutiny. But don't let him write this down, if he asks you. Tell him to go to an attorney and have it written up correctly. You also do not want to have to tell him how to write your employment contract, do you?

Above all, be positive and let him know how much you are looking forward to working with him and the band, and you hope to be able to start soon, once this is all cleared up.

MysticMichael · #16 10-31-2009, 10:18 PM

Quote:

Originally Posted by Febs

While I would have to look at the exact language of the contract he is proposing, the only one of those items that strikes me as potentially troublesome is the 4 gig notice because it vague.

My thoughts exactly. "Four gigs or two weeks - whichever is sooner" is more like it...

The fact that the leader has even proposed this agreement is potentially a red flag - but how much of a red flag is very tough to tell, as the OP hasn't even begun playing in this band yet, and probably doesn't even know the leader very well.

All things considered, I really don't think the OP is giving up much by signing, as there are really more reasons to sign it than to not sign it. So go ahead and sign it, start playing out - and keep on eye on the leader to see whether he's really a straight shooter...or if possibly there's more going on here than meets the eye.

If it turns out to have been a bad move, there's nothing keeping the OP committed to the band - except the commitment for "four gigs' notice". But he'll never know for sure until he jumps in...

MM

Jason P Bass · #17 11-01-2009, 06:09 AM

Everything said above is reasonable, but here's another twist.

What, precisely, is he going to do if you break this agreement?

Pay $500 for a basic retainer for a cheap lawyer to file a lawsuit to get your beer money? He needs to prove DAMAGES in order to get a worthwhile judgment.

If you're playing bar gigs for $50 per musician, 4 gigs wouldn't even cover the cost of an attorney. Even if your band is making $1000 per gig and you lose 4 straight gigs for them, you work in a business where substitute players are standard business practice and thus he would have a hard time proving that YOUR absence lost 4 gigs. Additionally, as others have noted, you probably live in a work-at-will state (most are) and can legally leave your job at any time (although 2- or 4-weeks notice is polite).

And any "contract" with the phrase "steal our gigs" in it has NEVER been reviewed by an attorney. That is unquestionable.

My free legal advice (which is probably overpriced) would be to tell him that you would be glad to sign the non-compete contract just as soon as your attorney reviews it. Wait a few days, and respond with, "My attorney said that it is vague and unenforceable, and has advised me not to sign it." I'll bet you a 6 pack of beer that the band leader drops the issue.

invader3k · #18 11-01-2009, 06:38 AM

I don't think there's anything in there that's really that demanding. Hopefully it's a sign that the band leader has his crap together, and not one that he's a flake who drives people off.

Febs · #19 11-01-2009, 06:56 AM

Quote:

Originally Posted by Jason P Bass

Additionally, as others have noted, you probably live in a work-at-will state (most are) and can legally leave your job at any time (although 2- or 4-weeks notice is polite).

It is true that an at-will employee can leave his job (or be fired by his employer) at any time in the absence of an employment contact. An employment contract can impose conditions on termination.

Quote:

And any "contract" with the phrase "steal our gigs" in it has NEVER been reviewed by an attorney. That is unquestionable.

I think that the original poster used the phrase "steal our gigs" to summarize the content of the proposed contract. I did not read his post to say that the contract actually contained that phrase.

Quote:

Wait a few days, and respond with, "My attorney said that it is vague and unenforceable, and has advised me not to sign it."

Do you really think that lying to the prospective bandleader is the best way to start off the relationship?

Jason P Bass · #20 11-01-2009, 08:37 AM

Quote:

Originally Posted by Febs

It is true that an at-will employee can leave his job (or be fired by his employer) at any time in the absence of an employment contact. An employment contract can impose conditions on termination.

I think that the original poster used the phrase "steal our gigs" to summarize the content of the proposed contract. I did not read his post to say that the contract actually contained that phrase.

Do you really think that lying to the prospective bandleader is the best way to start off the relationship?

Thanks for the info. I do have a question though - while a contract can "impose conditions" on your termination, can they actually FORCE you to work? (In other words, is it always legal for the employee to say, "I accept the consequences, and I will not work.")

Good point about the "steal our gigs" language.

My suggestion was based on being given a contract that included the language "steal our gigs". Perhaps it would be wiser to simply say, "I have been advised not to sign the contract." Passive voice is soooo liberating!

If the contract does not say "steal our gigs" but actually appears to have been drafted by an attorney, then the story (and my suggestion) would be completely different.