Hello, friends. Since I've been back on the radio, the number one question I get asked via emails, Twitter, blog notes, on air phone calls, and from folks who live within radio reception of WGMDfm:
"How come you're not on the internet? All the other shows from WGMD are...and how come you just don't podcast?"
Answer:
Because when I left my contract with CBS radio in February, 2008, they still held my "rights" until the orginial contract end date of October, 2010.
That's the only way they would let me out of the deal.
I won't go into the tale again of why I needed a change, and how wonderful my life is now.
But I needed to stop, slow down, and re-establish my life. The only way CBS would allow me an early release was a "non-compete" contract, valid until October, 2010.
It states I can work on the radio NO WHERE in America expect the Salisbury/Ocean City, Md. market. That's it.
It also states NO internet streaming or podcasting.
It also matters not that WJFK's format has changed, or any other radio moves that do or don't concern me directly. The deal clearly states the Non-Compete is first and foremost for the Washington, D.C. market. ALL stations, owned by anyone. Regardless of format.
It's a crappy deal. I have not been paid a dime from CBS since I stepped away.
And I walked away from some big bucks that most likely will never pass my way again.
I accepted it because I knew I needed to step away and get my life in order.
I know the deal I made with the CBS devil, I have signed off on the deal, and I will honor it.
But I still get bombarded with questions about it. So let's go to a very respected and highly paid (by ME!) lawyer to answer the three main questions I still get:
QUESTION #1:
What is a non-compete?
A covenant not to compete is a promise by an employee not to compete with his or her employer for a specified time, in a particular place or in a particular way. A covenant not to compete, which is also known as a non-competition agreement, may be a clause in an employment agreement or a separate contract standing by itself.
QUESTION #2:
Come on, are these things really enforced?
Generally speaking, yes. Courts once did not enforce non competition agreements, viewing them as unlawful restraints on competition. Today, however, courts will enforce non-competition agreements if:
- the employer proves that it has a legitimate business interest to protect by restricting its employees' right to compete against it;
- the restriction on the employee's right to compete is no greater than that necessary to protect the employer's business interest; and
- the covenant not to compete is supported by consideration, meaning that the employee received something in exchange for it.
Every case turns on its own facts. Judges who enforce a non-competition agreement must balance the protection of the employer's business interest against the employee's right to earn a living, as well as other factors, such as whether the restrictions will harm the public.
QUESTION #3:
Why don't you just turn on the stream, or make your own
podcast? Why don't you just try and break the contract?
What could happen?
Plenty, and not much of it good. First, your employer can file suit against you for an injunction and money damages. If the employer can point to a facially valid agreement and reasonable restrictions, most courts will grant an injunction while the lawsuit is pending. You will have to hire an attorney to defend the suit and, when it is over, you not only may owe the money damages sought by the employer, but may be prevented from competing for a period of time following the lawsuit.
Another tactic for the former employer is to threaten your new employer with a lawsuit for "tortious interference" with the non-competition agreement between you and your old employer. If your non-compete is valid, then a third party who induces you to break it can face the same liability as you, and possiby more. To avoid this liability, the new employer will often terminate the new employee, which it is free to do.
Hope this helps answer those questions. I know it's all very complicated. IF there were a way out, I'd be there already.
I appreciate all the support.
I also know that everyone who communicates with me thinks it should be easy to get around this agreement, which I signed.
I can't, until one year from October.
Which is pretty close.
It would be nice to have my show on WGMD be available on the ole interwebs, but that deal will change in about a year.
Are we cool?
Danke!
d.
August 11, 2009
