We have acted for sports clubs seeking to arrange collaborative partnerships with other groups. We have often found that the initial outline agreements which sports clubs have set out have been weak. There are a number of considerations which should be considered when seeking to collaborate with other parties. The following is a snapshot of key factors which should be considered in order to best protect a sports club’s interests and ensure that the collaboration can work in an effective manner:
The purpose of the collaboration should be carefully considered. The agreement which the parties will enter into will need to be specific regarding what the collaboration is aiming to achieve. This could, for example, be a collaborative agreement to put on a music event.
Detail will be necessary in regard to where a collaborative event will take place. The simplest way of achieving this would be to produce a plan setting out the area where the event will take place. This will ensure that there is clarity for all parties as to where the event will take place and will help to protect the interests of the sports club.
The collaboration agreement should set out clearly what each party are to provide when putting on a collaborative event. This should be very detailed to ensure that all parties are clear what is required of them and who has responsibility for providing things such as any services (catering, security etc), equipment, manpower, premises etc.
INTELLECTUAL PROPERTY/CONFIDENTIAL INFORMATION
Whether intellectual property or confidential information is to be part of the collaboration or not ensuring that there is protection for a sports club is important.
The agreement will need to be clear as to when it is to start and end. Careful consideration should be given to ensure that the agreement runs for a sufficient time to allow for pre and post works to be completed. A break clause should also be considered to allow for the parties to terminate the agreement at a set time, or upon the completion or occurrence of an event.
The agreement should be clear as to who is to be responsible for paying for any services etc. The agreement should also set out whether the parties are able to invoice each other and if so when, how and for what. This will avoid any potential disputes that may arise after the agreement has been entered into.
Clauses in the agreement preventing each party from ‘soliciting’ the employees of the other party can be important to protecting business interests.
Warranties between the parties can be included in the agreement. Specific warranties tailored to the circumstances of the agreement can provide protections for the sports club involved. A warranty will give the sports club the ability to sue where they have been specifically promised something however it later is revealed to not be the case.
An indemnity may be included in the agreement to the effect of protecting each other against such as loss, fraud, bribery etc. Any indemnity should be carefully considered and negotiated between the parties so that it can be included in the collaborative agreement to bring certainty to the indemnity provided
The most common insurance in relation to collaboration agreements is professional indemnity insurance. Each party will want to protect their own interest by ensuring that the other party have sufficient and appropriate professional indemnity insurance so that concerns regarding potential claims can be satisfied.
The liability of each party should be set out in the agreement. This may include exclusions/limitations in regard to liability. The liability may be excluded/limited for claims of personal injury, negligence or fraud etc.
Where a termination clause is included in the agreement the events that will allow for a party to terminate should be considered. Examples are: failure to pay, bankruptcy, breach of the agreement etc.
A Force Majeure clause in the agreement can protect parties against any ‘Act of God’ event that may occur preventing a party from being able to fulfil their part of the agreement. The clause will protect them from any potential claim.
Whether the parties to the agreement will be able to assign the agreement should be carefully looked at. This would allow either party to transfer their part of the agreement to a third party to fulfil. It should be carefully considered as it could potentially put the remaining party to the agreement in collaboration with a new party, which could lead to potential difficulties. As a general rule assignment should be resisted by the club.
The agreement should clearly state the set of laws and court that will have ‘control’ over the agreement. This means that should any disagreement in regard to the agreement occur the agreement itself can set out the courts which will have the ability to rule over any disagreement.