Negotiating, Drafting and Interpreting Sports Marketing Agreements: Some General Legal and Practical Points and Considerations
Blackshaw, Ian, The International Sports Law Journal
1. Introductory Remarks
It has been generally well said, that if a commercial deal makes business sense, it also makes legal sense and it is relatively easy, therefore, to draw up the corresponding legal agreement - and, where necessary, enforce it. And this is certainly true of Sports Marketing Agreements, which come in all shapes and sizes. All the commercial and financial arrangements that have been negotiated need to be covered by clearly drafted provisions to avoid any legal challenges to the validity of the Sports Marketing Agreement concerned on the grounds of its uncertainty. Otherwise, the parties may find themselves with a void Agreement, which they cannot rely on or legally enforce. Clarity is the name of the game!
Before dealing with the subjects of drafting and interpreting Sports Marketing Agreements, which, as will be seen, go hand in hand, a word or two on the general principles of negotiating contracts generally would not be inappropriate.
2. Negotiating Sports Marketing Agreements
When negotiating Commercial Agreements generally and Sports Marketing Agreements, in particular, especially those with an international dimension, attention should be paid to the following general principles of negotiating.
Negotiating is an art - not a science - and there are a number of useful guidelines to be followed in order to achieve a successful outcome.
In basic terms negotiating is 'getting to yes'. Like any other form of advocacy - persuading another person to accept your point of view - a negotiation needs to be carefully planned. Before you start, you need to know clearly what your objectives are and how you are going to achieve them. Make sure, however, that your objectives are realistic and reasonably achievable.
An important part of the planning process is to gather as much intelligence about the other side in the negotiation as possible. You will need to know, amongst other things, the kind of people you are dealing with; their strengths and weaknesses; and their aims and objectives. Be prepared generally!
Again, as part of the planning process, the negotiation needs to be structured into distinct phases. The first phase should identify any points of agreement and get those out of the way; the next, any points of disagreement and the reasons for them. The following phases should be to evaluate, from your own point of view and that of the other side, the importance of these differences and the possibilities for any compromises. Try to identify the matters that are negotiable and the ones that are not negotiable. The points that can be conceded and 'given away' and the ones that cannot - the ones that are 'deal breakers' if not agreed!
Watch out for and try to interpret any 'body language' - that is, non-verbal communications and gestures. This is very important in multi-cultural negotiations.
Negotiation also needs time and patience and should not, therefore, be rushed to avoid bad deals.
Every negotiation should be conducted in a courteous and conciliatory manner. When tempers and blood pressures begin to rise, it is time to take a break!
The use of 'role play' - the 'hard' person and the 'soft' one - should be handled carefully. You should decide, in advance, on the particular roles to be played by each of the members of your negotiating team. And, having done so, you should stick to them! In particular, you should appoint one of the members of the team to lead the negotiations and someone else to take notes and keep a record of everything that is said and 'agreed' during them. As to the composition of your negotiating team, if the issues raised involve technical, legal and/or financial matters, make sure that there is someone who is qualified and, therefore, can deal with them.
Likewise the imposition of any deadlines, which are designed to move the negotiation along and reach a conclusion more speedily, should also be carefully managed. …