JPF Home Page Forums General Messages Industry Message Forum enforceability of agent contract

greetings,

I have a question regarding booking agency contracts and hope someone can share some insight. I have been a performer for many years and have worked with dozens of booking agents and agencies over the years. I’ve had good and bad relationships with agents, but I have always lived up to my end of any agreement I have signed. Recently we have run into a situation with one particular agent and I am curious as to the enforceability of his contracts.

Michigan, where I now reside, used to require that agents be licensed by the state. That has changed. In addition, venues here can cancel their entertainment contracts -without penalty - with just 24 hours’ notice. The act has no real recourse. Of course, agents don’t really to share this information. It seems to make contracts a bit of a joke. However, if the performance contracts aren’t truly binding, I am curious as to what other elements of these contracts are equally unenforceable. I have been unable to find any information online that deals with this topic.

For example, agency contracts always include a fine print blurb about the artist paying the agency its negotiated commission if the act returns to a venue within a stipulated time frame – even if booked through another agency. The time frame is usually anywhere from 12 -18 months. The situation we have run into is, an agent we use (very reluctantly) lost an account with a club he booked us into a couple times. The agency who picked up the account pitched us to the club, not realizing we had already played there. The club wants us back, but we have held off on booking the gig because 1) we can’t afford to pay a double commission on the gig and 2) don’t want to end up in court with the agent.

When we checked the fine print on his contract for the venue, the time frame is listed as FOUR YEARS.

Anyone have any advice on the enforceability of this?
Thanks for your help.
Genevieve

Ahoy, Genevieve!

One of the things about an agreement like this is that there's no solid answer. Now, there's probably a strict interpretation of contract law wherever you're living that would spell out legally what the implications of your situation are. But from a practical standpoint, it's much grayer.

As to whether it's strictly enforceable, it really doesn't matter...if someone decides to take you to court over it, you've already lost and the lawyers and court costs will eat it all up.

Even more of a concern in the long run is the kind of reputation that you might get (even when you don't deserve it) if someone gets the feeling they've been cut out of the deal.

But it's not all doom and gloom. There are a couple of possibilities to explore.

One possibility: Draft a letter which you'll send to both agents explaining the situation and proposing a solution. Point out that on one hand, your old booking agent is unable to produce that venue for you to work at. And point out that on the other hand, the new agent was able to book the venue largely on the strength of a prior relationship with the venue and it was not a new lead.

Once you've got them both realizing that they both contributed to your possible bookings, propose to them that for this venue, for a period of time you consider reasonable (suggest maybe six months) you would like to book the venue under the condition that they would split the booking commissions accordingly.

Finish off the letter expressing your sincere desire to take on the work while meeting your obligations to both of them.

There's a good chance they'll go along with this. The old agent shouldn't mind it, since he'll be getting money for something he's no longer doing. The willingness of the new booking agent to go along with that proposal should tell you a great deal about how much you want to work with him/her.

You might want to point out--or have it ready for later discussions--that your other ethical option would have to be refusing work at that venue. And that gets no money for anyone.

If all that doesn't produce the desired arrangements, discuss the possibility with your old agent of buying out your obligation for a flat fee. Find out what they'd sell it for and perhaps discuss that proposal with your new agent.

The important thing to realize is that agreements like this are always subject to renegotiation.

Incidentally, your desire to find an ethical and professional solution to this problem speaks much to your credit. My compliments on that!

When you take this back to your agents with a legitimate, professional attitude that you've shown here, the new one is going to appreciate that professionalism and your old one may find they're sorry they've lost you.

Sorry to hear that you've had a situation like this come up. I hope you're able to work out an arrangement that makes everyone happy.

Let us know how it works out!

Ross

Unfortunately, the first agent in question is... how can I say this politely.. a knobby knee'd, greedy troll. Yeah, thats being pretty polite, considering. LOL

This agent's reputation is well known throughout the state. He is famous for screwing the musicians, DJs and comedians he books. I've noticed he has two sets of contracts. In talking to other acts, we've concluded that he often books gigs for a MUCH higher price than the contract price he gives the bands, who are given a different contract to sign. He also takes excessive deposits on gigs and then drags his feet or 'forgets' altogether about paying the performers the amount he collected above and beyond his commission. Currently I'm trying to collect $100 he owes us from the deposit he took on a recent gig we booked through him. I've given up on trying to collect on several small amounts - $20 here, $40 there.

He has gone so far as to tell a client who had requested us that we weren't available for a gig because he wanted to book his own band for the date.

This guy's ethics are rather questionable and to put it bluntly, he doesn't play well with others. Most agents are willing to collaborate on gigs when one agent has a gig and another agent has access to a group that fits the bill perfectly. I've never heard of this guy doing that and he constantly runs other agents into the dirt. Another agent that we much prefer working with is actually considering filing a slander suit against him.

In addition, he's not admitting he has lost the account with this club. He just tells us they are all booked up for the coming months. We know better.

Sooooo, while we would like to do the right thing, We're in quite a pickle I'm afraid. I just wondered what the repercussions might be if we finally get exasperated enough to decide to move forward without his cooperation. I'm not having any luck finding resources and will probably just resort to making an appointment with an attorney to get the question answered.
Thanks for the input. Your response is right along the lines of how I would have advised someone. Unfortunately, we have an essence of 'slimeball' complicating the situation.

You are correct in thinking that the contracts are kind of a joke. In fact, many that I now sign are just called engagment agreements. If another agent books you into the same room, and as long as you didn't sign ANY exclusive booking or artist development with the other agent(ie the one that booked you there first)... You should just be honest and tell them the other agent booked you there... Let them hash it out... This is what has happened to me a few times and that is what I did... They usually end up splitting the commission. Just send it to the guy that did the booking and you will be ok. (At least I've never had a problem) They usually go after each other like rabid dogs... LOL!

Good luck

Shred

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http://www.secondtakeband.com/

Ross,

Dealing with agents can MOSTLY be civil... but there are some in THIS business "called entertainment" that HAVE to be put in their place.

The kind I'm refering to are...(if you give them and inch) they will DEMAND a mile.

Unfortunately, being Mr. Nice Guy doesn't always work...

I feel for you sitiation Genevieve, I've been there myself.

Just remember the agent works for YOU... you don't work for them.

Good luck!

Shred

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http://www.secondtakeband.com/

Hi All,
From what I am reading this "Agent" is small potatoes to be sure. If he were to take you to court, just how much could he expect to recover. Not much I suspect. And getting a judgment and collecting it is two different things. If he owes you money, and you have proof, of which may not be too hard to prove, and it comes up in court, it may be something he doesn't want to face. I may write him a letter documenting where he has failed to live up to his end of the bargain and basically suspend the Booking Agreement until he has done his end of things. And then I would go right on playing gigs and let him come to me, of which I doubt you will ever hear from him again. You are an honorable person, appearently he is not.

I would suggest you put out a contract on HIM.

Can't deny we've been tempted.

A few years ago he actually double booked my band one weekend and then told one of the club owners we were to blame. He booked us for an out of town gig (which we signed a contract for) and evidently he'd also tentatively penciled us in at another club and forgot to change it. We weren't aware of the mix up until we went back for another gig at that club some months later and were confronted by the owner and both managers at the door who asked us why we'd punked them out on our last booking there. After we learned the whole story, I was amazed they'd agreed to have us back. Evidently on the first night, the club had been packed to capacity with folks waiting for us to start.

When we failed to show up (for a gig we knew nothing about!) the manager called the agent to see where we were. The agent had the audacity to tell them he didn't know why we hadn't shown up. Made us look like irresponsible twits. I was livid.

I know, you're all wondering why we have continued to accept gigs from this moron. Unfortunately, he's about the only agent in the region who has any work available and we simply don't have time to do all the legwork involved in booking ourselves consistently. Now we've limited ourselves to accepting rebookings of private functions we have done in the past and will probably quit using him altogether by summer, but we really enjoyed playing at the one club in question.

Anything involving a contract should be interpreted by an actual lawyer practicing in your jurisdiction. Any comments here are opinions only. Just be careful not to take action based on anyone's opinions because they won't really matter in court.

Brian

True. Thanks Brian. I've been at this a long time and know from experience that taking issues like this to court just aren't worth the money and hassle. We were planning to ask an attorney's opinion but I was curious to see if anyone had experience or specialized knowledge with issues of this nature. Gotta admit though, It did feel good to vent. LOL

Ah! Okay, I'm beginning to see the situation. <grin> But this yields a whole different piece of advice, then.

First, let me point out that I am far from litigious. I shudder when some folks yell "sue" at the drop of a hat. But this does sound like it's time to talk to a lawyer.

And here's the premise: It sounds like you've got a really good case for arguing breach of contract with this troll.

Your success with the next step will have a bit to do with how thoroughly you've been keeping records. But if you can collect specific accounts of misbehavior, you have a good chance of getting free of it.

So here's the modified recommendation:

List every grievance you have with this toad of a human being, collect as much documentation and evidence as you can, list people who can corroborate your statements. Put it into a folder and go see an attorney.

Attorneys have a usual practice of providing an initial consultation at no cost. You can explain your situation just as you have here, and provide them with the folder you've put together. Then explain what you'd realistically like to have--whatever you've decided that is.

You see...your attorney can write a letter demanding he cough up the monies he owes you, provide a full accounting of his financial records regarding your past business dealings, etc.

Of course, if the troll he is unwilling to cooperate, the attorney can cite all sorts of unpleasant consequences of litigation for breach of contract--subpoena for his relevant business records, actual damages for monies due you and for loss of work you've had to refuse. Or even punitive damages well beyond all that. Oh--and reimbursement for your legal fees, of course.

Or you can have a proposal to settle: agree to dissolve the association between you and said toad, releasing you from any obligation under that contract.

If toad is smart, he'll provide a written release of your obligations instead of facing a bunch of expensive and time-consuming unpleasantness.

The point being: talk to an attorney and find out what your options are. For the price of the attorney drafting a letter, you may get everything you want. The inital consultation shouldn't cost a thing. And you can ask what a letter like that might cost before you take action.

Now...if your agreement with the toad has a clause about retaining "binding arbitration" of a specific sort rather than deal with courts and lawyers, you still have the right to consult with an attorney. How you proceed after that depends a great deal on what your contract says, but an attorney will often advise you during an initial consultation.

If you're assocated with any professional organizations, unions, etc., contact them to see if they have attorneys who can advise you, or if they have recommendations for attorneys.

It shouldn't cost anything at all to learn what your options are.

I'll keep my fingers crossed for you. Let us know how it goes!

Ross

[This message has been edited by crbennett (edited 02-01-2005).]