Broadcasters Dealing with Non-Franchised Talent Agencies: Advisory Notice
The following is a reprint of an advisory geared to up-and-coming broadcasters who are not yet SAG-AFTRA members. It is reprinted here for the information of members.
SAG-AFTRA has received increasing reports of non-franchised agents representing broadcasters, and that some of these non-franchised agents are offering terms in their contracts that are very problematic. Signing a non-conforming contract with a non-franchised agent without knowing exactly what the language in the contract means can be professionally devastating for a broadcast professional. Increasingly, SAG-AFTRA has seen broadcasters entering union markets from non-union markets who have already signed non-conforming contracts with non-franchised agencies that contain clauses commonly referred to as “perpetually-renewing agency clauses” or “evergreen” clauses.
Here are some of the potential dangers of signing with an agent that is not franchised under either Legacy SAG or Legacy AFTRA.
Be Wary of Perpetually Renewing/Evergreen Agency Contracts:
Non-conforming contracts used by non-franchised agents may allow those agents to charge anywhere from 10% to 25% commission, and often state that all extensions, renewals or renegotiations of employment contracts are commissionable, even after the expiration or rightful termination of the contract. This means that if you decide to terminate your non-conforming contract with a non-franchised agent, or simply just let it expire, you may be faced with a non-franchised agent who could demand commission be paid for as long as you are working for the same employer.
Do not sign a non-conforming agency contract with a non-franchised agent that contains a provision that allows the agent to continue to receive commission on your work with your employer even after the agency contract expires. Such a provision may allow an agent to profit from your employment for years after you have ceased being represented by the agency. These types of provisions are not permitted in the Legacy SAG or Legacy AFTRA Standard Contracts used by SAG and AFTRA Franchised Agents. These clauses can be buried deep within a non-conforming contract and therefore may be hard to detect. For more information about these perpetually renewing/evergreen clauses that may be in your non-conforming contracts of representation, please contact the SAG-AFTRA Agency Department at email@example.com.
Additional language to look out for:
- Arbitration Clauses - Arbitration clauses are included in contracts to serve as an expedited, cost-effective way to settle disputes. However, some of these non-conforming contracts of representation require that arbitration be heard in the State in which the non-conforming contract was first signed. If the non-franchised agent gets you employment in another part of the country and a dispute arises, you may have to pay airfare, room/board and/or miss work to travel there in order to defend your rights.
- Check Authorizations - There may be an authorization buried deep in a contract to have the non-franchised agent handle/receive your checks. A check authorization agreement should be a separate agreement signed by both the agent and broadcaster. In many of these non-conforming contracts from non-franchised agents, you could be required to legally terminate the entire non-conforming contract if you want to rescind your check authorization with the non-franchised agent. In all SAG-AFTRA contracts, the check authorization is a separate agreement that is terminable at will, as long as it is done in writing.
- Contract Term - The Legacy AFTRA contract allows for an 18-month initial term agreement (renewable after a year) and three-year contracts after that. The Legacy SAG contract allows for a 12-initial month term (renewable after a year) and three-year contracts after that.
- Automatic Renewal - Do not sign any contract with an automatic renewal clause. The Union’s agency contracts require that you sign a new agency agreement after the original one expires. It may seem time-consuming, but it is beneficial when you want to end a relationship with an agent.
- Termination Language - Review the termination language before signing a non-conforming contract issued by a non-franchised agent. Many of these non-conforming contracts allow for termination only 30-90 days prior to the automatic renewal date set forth in the non-conforming contract. These dates can become confusing if you are in your third or fourth renewal contract. You may be tied to the non-franchised agent for a new contract if you miss your termination window.
- Commission - Many non-franchised agency contracts state that all work obtained, directly or indirectly, while you are under the non-franchised agency contract is commissionable. This means that the non-franchised agent may commission work you obtain, whether or not he or she provided any services. Be careful to ensure that reasonable agency services are performed in exchange for compensation, and that these services are specifically addressed in any contract you sign. The services must be performed as long as the agent receives commission.
The dangers of such non-conforming contracts issued by non-franchised agents and the important protections of the AFTRA and SAG Franchised Agency regulations are among the many reasons why SAG-AFTRA members should only work through Union franchised agents for their agency representation. If you are interested in obtaining a list of agents franchised by SAG-AFTRA, please email us at firstname.lastname@example.org or go to our website at www.sagaftra.org for more information.
Note: Union Franchised Agents are permitted to commission the life of the employment contract they have negotiated which may extend their right to commission beyond the Agency Agreements.