Sports & Law – 2nd Period in the Game of Advertising and Marketing

Posted on by Gordon B. Greenwood

In the 2nd period we are still trying to assess the dynamics of the other team and what restrictions they may operate under which may affect their performance. Who are they really and how flexible can their game plan be?

Organization and Organizations – A tremendous amount of organization is required when a company’s advertising or promotional activities involve a sports entity. Depending on the level involved, the company may have to deal with an athlete, his or her agent, the players’ association to which he or she belongs, the team, the league, and possibly the governing body for that sport. Remember that intellectual property rights may exist at each of these levels, and may involve a company owning the IP of the sports entity. Attention should be paid to IP use, licensing and protection. The promotional activities being conducted have to be organized to conform to the competition schedule of the sports entity. When a promotion may involve a sports organization, amateur or professional, care should be taken to ensure that any activity properly takes into account the geographic or commercial presence which similar sports organizations have within the target area to avoid confusion or unintended promotion of the wrong parties or products. As a sponsor, companies should check against the possibility of confusion when entering into a relationship with a sports organization where its counterpart in another country or jurisdiction has a relationship with one of the sponsor’s competitors. This becomes even more troublesome when both sports organizations are present together at a national or international event where the regional entities have affiliations with companies who are competitors.

Rules, Regulations and Restrictions – There are few areas of life which have more rules than sports and these are compounded by adding those related to advertising and marketing. In sports there are rules of play, rules of conduct, rules relating to the wearing of uniforms, rules for dress code, dietary rules and so on and so on. Mixing sport with commercial advertising introduces new elements of rules and may require some cultural adaptation by both the companies and the sports entity. The imagination of an advertiser must work within the restrictions of what the sports entity is permitted to do under their own rules and what intellectual property constraints may be imposed by teams, players’ associations, IP property rights holding companies, leagues, governing sports bodies and so on. Sports entities will find that advertisers are bound by rules and regulations which restrict what they can say and who they can say it to. For example, an athlete may want to reach out and promote a product or service they believe in, directly to children, only to be told that it is not permitted. Learning one another’s limits is essential to setting the groundwork of a sound cooperative relationship. Don’t expect more than can be delivered and respect the restrictions placed on your partner.

Next time – Terms & Conditions and Spokesperson.

Estate Planning – What happens to your pets when you’re gone?

Posted on by Mary G. Griffith

One of the questions I am asked more and more frequently in my estates practice is how to handle pets that may be left behind when a client dies. Some people may not think about it when they are arranging their affairs, and some may dismiss it altogether; but for many clients their pets are their companions and part of the family. For some, ensuring their pets are properly looked after is a much more concerning issue than the disposition of many of their other assets.

Legally, pets have traditionally been treated as property. This means that unless they are specifically dealt with under a Will, they form part of the “residue” of the estate and are to be distributed in the manner set out for that part of the estate. This means that a pet could end up being given to someone you never would have picked or, if none of the beneficiaries of the residue of the estate want to take the animal, it could be given to a shelter.

So…what are your options? Because an animal is property it cannot be named directly as a beneficiary, nor can it be named directly as the beneficiary of a trust. It is possible to set a charitable purpose trust, or a personal trust that names the animal’s caregiver as the beneficiary, with the trustee of the trust given discretionary power to distribute the trust funds to the beneficiary as required. In this case, after the animal dies, the remainder of the funds (if any) could be used to benefit a named charitable organization (in the case of a charitable purpose trust) or the funds would be divided amongst identified residuary beneficiaries of the trust (in the case of personal trust).

Or, a simpler option: give some thought to who you want to take your pets (and make sure that they agree!). Consider having instructions in your Will that a certain person undertake the care, maintenance and welfare of the pet. If you are going to do that it may be appropriate that they also be given a certain amount of money to cover the cost of taking care of the animal.

Another potential option would be to speak with a trusted friend or vet and make arrangements for them to find a home for the animal. Again, the specifics of how this would work and what estate funds may be used to defray expenses needs to be thought through and drafted carefully into your Will.

Most importantly, no matter what option you choose, make sure that your lawyer is fully aware of your intentions and discuss with them the various options available for you to give effect to those intentions.

Finally, it is interesting to note that a Bill was introduced in Quebec last fall that, if passed, would define animals as “sentient beings” and not property. Similar legislation has already been passed in some other countries, and if the Bill is passed in Quebec that may open the door to other provinces passing similar legislation. Should this happen, the issue of how to ensure that your estate plan addresses your pet’s care may take on even more importance”– not just emotionally, but legally as well.

One is Not the Other – A Named Attorney and An Appointed Executor

Posted on by Michael A. Chambers

There is a common misconception among those not trained in the law that a person appointed under a Power of Attorney to take care of your financial affairs when you become incapable of doing so yourself (under what is most often called a Continuing Power of Attorney) continues to have authority to at least “tidy things up” once you die. This is not true. The law is clear. Authority to act under a Power of Attorney is terminated, ends, when the person who granted the Power of Attorney dies. Full stop, no qualifications or exceptions.

So who takes over? Your executor. And the same applies in the reverse to the power and authority of your executor. Your executor has no authority whatsoever to do anything on your behalf prior to your death – nothing. However, once you die the authority to manage and deal with your estate becomes vested in your executor – this includes, if there is any issue about them, decisions with respect to your funeral and burial arrangements. Things become more complicated if you happen to die without a Will, or with a Will that doesn’t name an executor, because in that case there will be a vacuum with respect to who can manage and deal with your estate until an application can be made to the Court to appoint someone to have that role.

So you haven’t taken care of ensuring there is someone to manage your affairs when needed before you die if you only have a Will, and you haven’t taken care of ensuring there is someone to manage the affairs of your estate once you die if you only have a Power of Attorney.

You need both. Make sure that you have both.

So You’ve Been Appointed an Estate Trustee (aka Executor), Now What? – Part 5

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.

Ok, so you’re administering the estate and keeping an up-to-date and accurate accounting of all the estate funds. The last money-related issue that you need to take care of is the taxes. Before you dive in head first, I would strongly recommend contacting an accountant to assist you through this process. Together with your estates lawyer, an accountant is a valuable asset for any estate trustee.

There are two types of tax returns that you need to be aware of as an estate trustee.

1. Terminal tax return

This is the last, personal tax return of the deceased. It accounts for the deceased’s income from January 1 of the year of his or her death, to his or her date of death. As estate trustee, it is your responsibility to ensure that this is completed and filed in a timely fashion. Any taxes or fees owing are payable by the estate.

2. Estate tax return(s)

From the date of death until the estate is fully distributed and closed, the estate must file a tax return on an annual basis. You have some flexibility when it comes to the estate’s year-end. This, along with filing deadlines, should be discussed further with your accountant and estates lawyer. As estate trustee, it is also your responsibility to ensure that this is completed on an annual basis and that any monies owing are paid by the estate.

When tracking the funds in your the estate accounting, it is important to consider and hold back enough money to pay any taxes or fees that might be owing to the Canada Revenue Agency (CRA), either from the Terminal tax return or the Estate tax return(s). Your accountant can help you make an educated estimate, ensuring that enough funds are held back to cover those costs.

Once you begin winding up the estate, have filed the final return and have received the final notice of assessment, as estate trustee you should apply to the CRA for a Clearance Certificate. This document, provided by the CRA, certifies that there are no more funds owed by the deceased to the CRA. Without this document, the estate trustee can be held liable for any funds owed by the deceased or their estate. For more information, visit the Government of Canada’s Canada Revenue Agency website.

If you’ve completed a number of tax returns and are thinking about a Clearance Certificate, you’re likely nearing the end of your role as estate trustee.

Next time, in the final entry of this series, I will discuss the final steps of closing an estate.