Sports & Law – 1st Period in the Game of Advertising and Marketing

Posted on by Gordon B. Greenwood

While we tend to speak of “Sports Law”, what we really mean is the interaction of all aspects of law with sport and vice versa. This initial blog on this topic is one of four and, of necessity, the following is general in nature. I would ask you to keep in mind that the context may require you to think in terms of individual athletes, teams, sports organizations, leagues, players’ associations, agents or any or all of them. For simplicity, I will just refer generically to “sports entity” recognizing that this does require some interpretation by the reader as to applicability within the above categories.

Sponsorship – By far the easiest type of sponsorship is to do so anonymously and therefore with no worries. However, if your sports sponsorship is public and involves anything from an individual athlete through to a sports league, you are essentially cobranding yourself with that sports entity. In some peoples’ eyes, the value of your brand may go up and down with the performance of the sports entity. Unfortunately as well, the value of your brand may go up and down with the conduct of the sports entity. Every sponsorship arrangement should always contain an immediate escape clause in the event of illegal or unacceptable behaviour (sometimes referred to a morals or morality clause) or at the very least have a termination clause in the event the relationship is not working out. As in any contractual arrangement, it should be drafted so as to foresee circumstances where one party wants out of the relationship when the other one wishes it to continue. Some key items to look at in any sponsorship arrangement are: exclusivity, duration, termination, compensation, behaviour standards, expectations and the scope of use by the sports entity and the sponsor of the “brand” of the other.

Promotion – The elements of concern for sponsorship also exist for promotions. The scope of the relationship should be clearly defined and may also involve the association of the brands of the co-promoters to one another. Where a sports entity is being promoted, or the product or service of a company is being promoted by the sports entity, there should be an agreement regarding the activities to be performed in as much or even more detailed a fashion as with sponsorship. A promotion is more active in nature and tends to bind the sports entity and the company closer together in the eye of the public. This may require more checks and balances but one should also be very cognizant of its existence into the future since electronic and social media don’t disappear just because a contract has ended.

I would also like to raise a note of caution in relation to unknown, and possibly unwanted, promotion. If a company uses the name, image, voice, etc. of a sports entity without his, her or its knowledge, they may find themselves facing a cease and desist letter or a law suit. Even the most innocuous of congratulatory messages or expressions of support may be difficult to separate from the commercial benefits the company receives from those references and could be seen as trading on the reputation of the sports entity. Also, it is common for companies to want to use tickets or sporting paraphernalia as prizes while either referring to, or branding, a contest or promotion with the name, image or logo of a sports entity. Not only may this be infringing on the intellectual property of the sports entity, but the tickets to a sporting event may themselves be subject to restrictions which specifically prohibit them from being used for promotional purposes without the express written permission of the sports entity itself. Nothing is more embarrassing than having your contest winners kicked out of their seats at a sporting final and having it all shown on the Jumbotron®.

Stay tuned for the 2nd Period – Organization and Rules.

Keep Calm and Retain a Supreme Court of Canada Agent

Posted on by Gordon B. Greenwood

Appealing a decision to the Supreme Court of Canada may seem like a steep, icy, mountain to climb. The oxygen gets thinner the higher you go, you slip and stumble while your timeline erodes and there is sometimes a feeling of plummeting downward while desperately grasping for that solid handhold. Think of a Supreme Court of Canada Agent as your lifeline providing you that solid grounding and your basecamp to help survive the climb to the highest Court in the land.

Although an Ottawa Agent is only required to be retained once an Application for Leave to Appeal has been granted (Rule 16(1)), retaining an Agent early when initially preparing an Application for Leave to Appeal will help ensure that your argument is presented to the Court in the most effective way possible. What is the issue of public importance? Sometimes that isn’t a question easily answered. An Agent can help you narrow the issues to find the basis of your argument. Retaining an Agent at the application stage is like starting your climb with an extra supply of oxygen for when it seems the air is getting a little thin. Your Agent is the Sherpa who helps to carry your heavy load.

Your Application is allowed and leave to appeal is granted – you’ve made it halfway up the mountain. Time to prepare the necessary documents for the Appeal. Although the Rules of the Supreme Court of Canada are very clear as to what documents are required to be filed on an Appeal, the devil (or Abominable Snowman), is in the details. There are various requirements for documents which are peculiar to the Supreme Court of Canada, of which even a seasoned lawyer may not be aware. For example: Generally speaking court documents are bound as any book would be bound – pages facing up on the right side. In the Supreme Court of Canada pages are bound facing up on the left. When your efforts are focussed on writing a compelling argument, these oddities may evade your attention when preparing your documents.

An Agent can also assist you in preparing your argument, as well as ensuring that you are fully in compliance with the Rules. Advice and experience can reduce the chance of you falling off the mountain.

After all documents have been filed with the Court and it seems the only thing left to do is wait for the hearing, your Agent will notify the Court of who will be appearing as counsel and, if it is necessary to reserve seats for the hearing, your Agent can do this for you as well. This is part of the Sherpa job description. If this is your first time appearing before the Supreme Court of Canada, perhaps the nerves have set in! An Agent is there to brief you on every aspect of the hearing.

The Supreme Court of Canada is the highest Court in the land. It isn’t recommended you ascend that peak alone. Retain a Supreme Court of Canada Agent as your guide, to help share the burden and to help survive the climb as a team.

The lawyer’s role in advertising and marketing – from both sides of the fence!

Posted on by Mary G. Griffith

Don’t get me wrong. I love being a lawyer. I do, however, sometimes look back nostalgically to the time when I was blissfully ignorant of some of the things that are day to day occurrences for me now.

When I was a marketer, particularly one that had been trained in the prestigious P&G manner that dictated that any important recommendation could be made and fully substantiated in one page, I prided myself on being able to write clear, persuasive documents. In fact two of the favorite adjectives my last boss used in relation to good writing were “cogent” and “pithy”. One of the hardest things for me to do when I went to law school after 25 years in business, was to set aside my drive to keep everything I wrote to one page! The fact of the matter is that while that may be an admirable and achievable goal in business, when it comes to legal agreements – shorter is not always better.

Your lawyer has the responsibility of ensuring that there is enough specificity; that “what if?” eventualities are covered (i.e. “what if everything goes horribly wrong!”); and that what each party means is clearly set out and understood by the other. I didn’t know that there is actually a legal principle saying that ambiguity could be construed against the person who drafted it that way. I know all that verbiage seems like unnecessary complication and unending “legalese”, and I was one of the clients who complained about it at times, but it really is important!

As an aside, who knew that I couldn’t capitalize whatever word I wanted for emphasis? In fact, a marketer’s Life is made up of REALLY adding Emphasis, and Driving the Reader to the Proper Conclusion through the use of such methods. Little did I know that in the legal world, you can only capitalize a defined term”¦.it drives some clients crazy to read through all that boring prose and not see any of the key marketing deliverables capitalized as any normal person would do!

Language can be such a tricky thing”¦.when reviewing advertising copy it is often a challenge to merge sufficient clarity (to avoid running afoul of the Competition Act and other regulations) with maintaining the creative “hook” or punch that delivers great advertising. Courts and regulators use an ordinary impression test but the last thing advertisers want to be is ordinary!

When I was a client, I was often spoiled by my ability to get the legal review or answer back quickly, if not instantly, from our outside counsel. Even though my background means that I have a visceral understanding of the often unavoidable timelines and urgency faced by marketing and advertising clients, now that I am sitting in the lawyer’s seat I can see the client is often doing themselves and their lawyer a disservice. Both are deprived of the opportunity for “sober second thought” – an element which is often so important to great solutions.

We do respond as quickly as we can (even if it may be reluctantly) but it is our constant advice to our clients to involve your lawyer early. We are not nosy, nor are we trying to pad our bill, we are trying to play our role on your team to your best advantage. The sooner we are involved the more likely that your “big idea” can hatch and we can navigate any potential pitfalls and issues early so that the idea can come to fruition.

The bottom line? Involve your lawyer early, let them help you navigate the “boring” stuff and make your marketing and advertising efforts the best and most “bullet proof” they can be while you achieve your goals. In an earlier blog we had recommended that you involve your lawyer early in order to assist you creative team. Let’s turn that around to also make it clear that early involvement makes it easier for your lawyer to take that extra time to think things through and, with luck, maybe even streamline all that legalese.

So You’ve Been Appointed an Estate Trustee (aka Executor), Now What? – Part 4

Posted on by Megan E. Fife

Reminder: this series of blog posts assumes the deceased died with a Will. Also, keep in mind that the normal caveat applies: this information only applies to estates administered in Ontario and should be used as a guide only! Speak with a lawyer about your specific situation, as every case is different.

 

Now that you’ve begun administering the estate, you need to make sure that you’re keeping an up-to-date and accurate accounting of all the estate funds that are deposited and withdrawn from the estate. The first step in this process, as described in Part 3 of this series, is the opening of an Estate bank account. Once this account is open, you should consolidate all of the deceased’s accounts (that weren’t held jointly with anyone else, thereby keeping them out of the estate itself) into the Estate bank account.

 

What is an estate accounting? It’s actually very simple; tedious maybe, but simple. It’s a record of the transactions through every single bank account that the deceased owned at the date of death, and any bank account opened by the estate after death, as well as a record of the value of any investment accounts or other estate property and their disposition.

 

Begin a document for each of the deceased’s bank accounts, as well as the estate account, with the following columns:

 

Account Name, Account Number, Branch location (if available)

Date Details Deposits Withdrawals Balance

 

The first date recorded for the deceased’s accounts should be the date of death and the balance in the account at that date. Keep track of every single transaction, even those as small as $0.01. Ultimately, there should be a clear record of the deceased’s personal accounts being monitored, transferred to the estate account, and closed. The final record for each account should show a balance of $0.00 as the account is closed. You should eventually end up with only one account still active: the estate account. This account should show deposits from all the personal accounts, all expenses made on behalf of the estate, and the distributions made. Ultimately, once the estate has been fully distributed and all expenses of the estate have been paid, this account should also have a balance of zero and be closed.

 

Why do you have to keep such a detailed accounting? As the Estate Trustee, you have a duty to account to the beneficiaries for every step of the process of the administration of the estate. You are the ‘trustee’ of the estate, meaning that you have been given the power to administer the estate, solely for the purposes as set out in the Will. There is a process called “Passing Accounts” whereby the Court reviews and approves your estate accounts. While not every Estate Trustee is required to do this, it is best that you keep detailed records from the start, so that you are fully prepared if you are required to pass accounts.

 

Even if you’re not required to pass accounts before the Courts, you are required to provide the beneficiaries with a detailed accounting. If the beneficiaries feel that the accounting provided is insufficient or questionable in some way, they may request a passing of accounts anyways. This is why one of the most important things you can do as an estate trustee is ensure your records are detailed, clear and up-to-date.

 

Remember, as with all the previous steps, your estates lawyer is a valuable asset and can help you work through the estate accounting.

 

Next time: Taking care of taxes and closing the estate.

Children who do not wish to see one of their parents – When “Do you want to go?” is not enough

Posted on by Michael A. Chambers

It’s something that is thought to be the case by I would suggest almost all parents, a lot of lawyers, and certainly some judges. If a child says to a custodial or shared custodial parent, “I don’t want to go to dad’s (or mom’s) house”, whichever is the case, then as long as the custodial parent has asked them the custodial parent has done their duty – it’s the child’s decision. Well, no it isn’t.

In a decision of the Ontario Court of Appeal last year, Godard v. Godard, a mother was found to be in contempt of an access order in favour of a child’s father in spite of the fact that the child in question was refusing to see her father – an accepted fact in the case. The mother in this case said that she had done her best to have her daughter see her father but the daughter “persistently refused to see (her father).” The daughter was 13 years old. No reason was given by the daughter for not wanting to see her father. Basically, what the Court said was that in this case although the mother was trying to encourage her daughter to see her father, she had in the end left it up to her daughter to decide whether or not she would see her father, and this was just not good enough. The mother needed to do more – didn’t have to use physical force – but had to demonstrate that she had taken all reasonable steps, short of physical force, to get her daughter to go. The rhetorical questions were asked: what would the mother do if the child refused to go to school, or refused to go to the dentist? Are there privileges that could have been removed such as an allowance, going to a weekend hockey tournament? They have to be tried. In a direct quote from the decision, speaking of what the mother did or didn’t do, “She (the mother) did not go beyond mere encouragement to attempt any stronger forms of persuasion.” So, just saying “she (or he) doesn’t want to go” may not be enough – mere encouragement is not enough.

A couple of things trouble me about the end result of this case, however “legally correct” it may be, and these types of concerns are often “baggage” that come naturally along with decisions on custody and access. One is: should we be forcing a child to see another parent the child is expressing a deeply held wish not to see without insisting that the cause of the deeply held view of the child first be uncovered? Two: will forcing the child to see his or her other parent through a finding of contempt on the part of the custodial parent not perhaps lead to even more deeply rooted resistance on the part of the child to see the other parent?

A situation and set of circumstances with no perfect answers.