Quote:
Originally Posted by Dannyalcatraz  The enforceability of a NCC hinges on several things, not the least of which is whether it is "unconscionable," the scope of the NCC, and the geographic area it covers.
Whether a NCC is unconscionable is a balance test between the company's valid reasons for having the NCC in the first place and the ability of the person covered by it to find gainful employment.
Given that the RPG industry involves precious few true corporate secrets- things that would be on a par with KFC's secret recipe, for instance- it would be hard for a court to justify barring someone from working in the biz on that rationale.
Ditto the size of the industry- despite the explosion in the number of companies since the dawn of the hobby, the number of professional level game designers probably wouldn't fill a mid-sized auditorium, and most of them probably know each other on sight. This also means that there aren't many vacant slots to be filled at any one time. (Besides, can you imagine what trying to get a job with another RPG company if you were known to be the one who tried to get a NCC enforced?)
Given the nature of publishing these games, the geographic coverage of a NCC would be considered national or international. A court considering enforcing a NCC would presumably ask the party seeking its enforcement to meet a high burden of proof.
Put all together, its unlikely that a court would enforce most NCCs in the RPG industry, assuming a company tried to enforce one. |
You're a lawyer too, right Danny? You analysis is my understanding as well. My concern, however, is that I have heard of situations wherein the company essentially offers two different compensation packages upon termination, one with a strict longer term non-compete, one without. Obviously the one with the better compensation package has the more restrictive non-compete clauses.
That may have some impact on whether or not a person even tries to fight it, especially if the money in the compensation package is doled out over the full time-frame of the non-compete agreement. It also makes it not a pure non-compete agreement fight, under the framework you laid out above. It blurs the line into making it a bargained for contract of another sort, with valid consideration for the non-compete. Do you have any experience with such situations?
Which goes back to my earlier post--does anyone with
WOTC experience know how they draft their non-competes and terms of termination agreements? Can these guys be hired by Paizo on Friday?
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