A Final Word on Texas Non-Competes for 2010

Posted on December 30, 2010 by Rob Radcliff

        

Last night I was at dinner with some friends and the subject came up of the enforceability of non-competes in Texas. The first statement/question I always here is that they are not enforceable. I’m not sure where that “common knowledge” comes from. Maybe it’s just some core American/Texas value that someone cannot restrict your right to make a living, which a non-compete/non-solicit agreement can do for some period of time. It also is troubling that such an agreement can effectively put an employee out of their profession to some extent – even doctors (but not lawyers).

The Texas Supreme Court was silent on non-competes this year, though it is considering a new non-compete case from the Dallas Court of Appeals, Marsh USA Inc., v. Cook, previously discussed here. That said the court beginning with the Sheshunoff case in 2006 and followed by Mann has made non-competes easier to enforce by eliminating some technicalities that prevented enforcement.

The basic requirements for non-competes remain the same. They must be reasonable in scope and ancillary to an otherwise enforceable agreement. Employers will continue to use them in appropriate and inappropriate situations. Employees will attempt to find ways to circumvent them or even have courts declare the provision unenforceable.   Each party should obtain legal counsel before they draft or sign a non-compete. An ounce of prevention is well worth the expense.

Happy New Year.

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Happy Holidays!

Posted on December 24, 2010 by Rob Radcliff

Happy holidays to you and your family.  No legal analysis this week but here is a link to a non-compete/non-solicit case involving Adobe.   

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Coaching Non-Compete Update

Posted on December 14, 2010 by Rob Radcliff

                                       

A few weeks ago we analyzed the enforceability of a college football coach's non-compete agreement.  The example we cited was Texas assistant Will Muschamp.  Make that former assistant Will Muschamp.  Muschamp left Texas over the weekend to take the Florida job.  No claim of a non-compete from Texas and as we discussed unlikely it could have been enforced even if there was such a provision.

 Bobby Petrino signed a new 7 year multimillion dollar deal with Arkansas late last week.  Included in the agreement was a non-compete provision that reportedly prevents Petrino from moving to another SEC school.  Whether that agreement is enforceable under Arkansas law is an issue for the Arkansas lawyers. 

If it were in Texas, the agreement would appear to be reasonable in that excludes Petrino from working for any of Arkansas' competitors.  It is unknown what the duration of the non-compete is under the new deal.  As pointed out previously, how a non-compete with a coach is ancillary to an otherwise enforceable agreement, a Texas requirement, is unclear.  What Arkansas is providing to Petrino that gives rise to the non-compete is the issue.  What would that be?  A lawyer will probably be able to come up with something but it will be difficult for that argument to survive appellate scrutiny.   

 

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Tailoring A Social Media Policy: The NFL Example

Posted on December 8, 2010 by Rob Radcliff

                                                 

Advice is aplenty for business owners on what should comprise their social media policy.  The universal comment is the policy should be tailored to the particular business and there is no one-size-fits-all policy. 

Professional sports leagues are not any different.  Last year the NFL set forth its social media policy in a league memo.  The highlights:

  •  players can use social media 90 minutes before any game and following media interviews post-game; and
  • players nor anyone acting on their behalf can use social media platforms during a game including halftime.

The league policy was in response to some more prolific social media users like Chad Ochocinco who has a  million followers.  During the pre-season this year he was fined for the following tweet:

Man I'm sick of getting hit like that, it's the damn preseason ------! 1 day I'm gone jump up and start throwing hay makers (sic).
 

Fines have continued.  Most recently, Michael Oher, the subject of The Blindside book/movie was fined for tweeting about his injury status during a game. 

The NFL's policy is clear and more importantly it is enforced.  To some degree it is monitoring the tweets of its employees (the players) and fining them appropriately when a violation occurs.  Not all companies can afford to monitor social activity but they can employ spot checks periodically.  The point is to get a tailored policy in place and uniformly enforce it. 

 

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