Golf Lessons- Is competition material interference?

[MEfree]

Is competition material interference?

Hypothetical- Pro A comes to me for legal advice regarding the following:

A number of years ago, Pro A signed a contract with City XYZ that permitted him to offer golf lessons at a driving ranged owned by the City in exchange for 5% of the gross lesson revenue he generated. The contract says, in part,

"Nonexclusive Use. This permit is not exclusive. "City XYZ" reserves the right to use or permit others to use any part of the driving range for any purpose, provided such use does not materially interfere with the rights and privileges hereby authorized."

It is a large driving range with lots of stalls and Pro A has enjoyed a steadily growing business until this past summer when the city signed the same contract with Pro B which resulted in lesson revenue dropping 15% for Pro A compared to last year.

Should I encourage Pro A to sue City XYZ (& Pro B) arguing the contract with Pro B materially interferes with the rights and privileges previously granted Pro A?

[David in FL]

Seems to me that you should encourage Pro A to ask an attorney that question......

[MS256]

Seems to me that "materially" would mean a lack of access to space or equipment.

If there isn't an infringement on his space on the range or range balls (or any other material things he may have used) I would have to side with the city if I were on a hypothetical jury.

Even as a complete lay person with the law that language would have stood out like a sore thumb to me in regards to competition. If I expected no competition I would have demanded different wording.

[newtogolf]

Laws are specific to each state, so I'd suggest Pro A call a lawyer and not ask for advice on a golf forum.

FWIW, city and states don't typically sign exclusive deals unless they have to, so it's likely not a breach of Pro A's agreement to sign a deal with another pro.

[Big C]

Seems to me that the language of the contract allows the city to do exactly what they did. So no, a lawsuit should not be encouraged.

[turtleback]

If you are not a lawyer, the pro is ridiculous for going to you (or any non-lawyer) for legal advice.

It would be like someone coming to me for swing advice,

[Patch]

Pro A needs to see a lawyer, who will most likely tell him he has no case against the city. However, depending on how the contract is actually written, Pro A might have a cause for litigation against Pro B, and or a specific city employee if he can prove malfeasance on a city official's part who may be in cahoots with Pro B.  Then again Pro B might have the same opportunity for litigation (malfeasance) against the city if they terminate his contract.

Contracts can be interpreted in a number of different ways, and is why Pro A needs a lawyer.

[MEfree]

Thanks for the replies.  One of the things I learned at law school is that courts prefer, all else being equal, to take the plain/ordinary meaning and/or the generally accepted meaning of contract terms.  While the law can be very complicated (and vary from state to state as some have indicated), there is use in seeing how the general public interprets things.

[No Mulligans]

"Nonexclusive Use"

What else could those two words reasonable be referring too if it wasn't about allowing other pros to teach from the range?

If I was on the jury I don't need any additional information, it is already clear to me.  I'd vote against the pro you are advising.

[Hardballs]

Not a chance! State wins, non exclusive use, they have done nothing wrong, you would have to argue that his 15% decrease is a direct and sole result of hiring another pro, (which they are allowed to do!) not easy! Self employed people can and will often have upto 20% fluctuations in yearly earnings, If this was a real case scenario, his best bet would be to renegotiate the contract with the state for a lower percentage to pay! And no he would not be able to sue pro b either! Two entirely different contracts that have no connection to each other!

[dkolo]

"Nonexclusive Use"

What else could those two words reasonable be referring too if it wasn't about allowing other pros to teach from the range?

If I was on the jury I don't need any additional information, it is already clear to me.  I'd vote against the pro you are advising.

The best argument to be made there is that the nonexclusive use language was meant to imply that the range would be usable for non-lesson use (ie, being used as a driving range for the public) in addition to being used for this guy's lessons. I don't think it's a winner, but it's conceivable, I suppose.

[Golfingdad]

Is competition material interference?

Hypothetical- Pro A comes to me for legal advice regarding the following:

A number of years ago, Pro A signed a contract with City XYZ that permitted him to offer golf lessons at a driving ranged owned by the City in exchange for 5% of the gross lesson revenue he generated. The contract says, in part,

"Nonexclusive Use. This permit is not exclusive. "City XYZ" reserves the right to use or permit others to use any part of the driving range for any purpose, provided such use does not materially interfere with the rights and privileges hereby authorized."

It is a large driving range with lots of stalls and Pro A has enjoyed a steadily growing business until this past summer when the city signed the same contract with Pro B which resulted in lesson revenue dropping 15% for Pro A compared to last year.

Should I encourage Pro A to sue City XYZ (& Pro B) arguing the contract with Pro B materially interferes with the rights and privileges previously granted Pro A?

I'm no lawyer, but this seems pretty straightforward to me.  His contract is non-exclusive and says the City can permit others to use the range for any purpose, provided it doesn't interfere with his right to give lessons.  All that says to me is that they couldn't give out more of these permits than there are stalls at the range.

My advice to "Pro A":  Become a better instructor.  (Maybe Pro B knows the 5 Simple Keys and owns and understands Lowest Score Wins , as well??)

[Clambake]

Pro A does not have a case against the city and would only be wasting his money litigating. There are several tests to examine on this: does the city have the right to allow another pro at this facility? Is the city materially interfering with the Pro's contractual rights at th facility? How could such interference be measured to determined if he has incurred damages? On the first test, the city clearly has the right to allow another pro at the facility under the non-exclusive rights clause. That is unambiguous. The fact that such a clause is explicitly defined in the contract would also be indicative of the city's expectation do do something like this, so Pro A could not claim that this was not intended in the contract. Omissions in contracts can sometimes be as important as what is covered, and in this case there is no omission that would be used to show lack of intent. Material interference would be a high bar to prove. Simply having another pro present is not materially interfering with Pro A's business. If the city did things like slashing the operating hours of the range, prevent him fron advertising, or some other significant adverse action, that could be material as it is fundamentally damaging his ability to conduct his business. Competition per se is not a materially adverse condition, and the fact that there are no doubt numerous teaching pros operating in the community will support that position, as Pro A was already able to establish and grow his business in the presence of that broader competition. The final part would be trying to show that he is a damaged party and the city's actions were the cause of those damages. Even if the above issues about exclusivity and material interference were shown to be in his favor, he needs to show those were the causal impacts of his damaged business. If his business dropped by 50% or more, a causal relationship would be easier to demonstrate. But with only a 15% drop this would be harder to show, the defendants would likely pull out all manner of statistics and data showing the decline of goffers, decrease in rounds, etc. They would likely subpoena his students as well to determine if they were dropping out because of his instruction or other factors. The litigation would be messy, with a small likelihood of success. Were he my client, I would recommend that instead of pursuing a litigious approach with the city and an antagonistic approach with the competing pro, he would be much better off seeking a strategic partnership with the other pro. Together they could pursue advertising strategies that might be otherwise unaffordable, or conduct clinics together, or other business activities that would be mutually beneficial.

[MS256]

Were he my client, I would recommend that instead of pursuing a litigious approach with the city and an antagonistic approach with the competing pro, he would be much better off seeking a strategic partnership with the other pro. Together they could pursue advertising strategies that might be otherwise unaffordable, or conduct clinics together, or other business activities that would be mutually beneficial.

Might work if they basically agree about techniques. Might be a disaster if they don't agree.

It's not hard to find quite a bit of animosity in the golf instruction community where some are on one side of the street and others on the opposite side (and each says the other is wrong).

[MEfree]

Would anyone's answer change if Pro A was not only permitted to give lesson in exchange for paying the city 5% of the gross revenue, but, as part of the same agreement, had been authorized to build and manage the driving range as well as ancillary businesses including a pro shop and restaurant on the city owned property (which had previously been a vacant lot) in exchange for paying the City 5% of the gross sales of all businesses.

The original agreement still included:

"Nonexclusive Use. This permit is not exclusive. "City XYZ" reserves the right to use or permit others to use any part of the property for any purpose, provided such use does not materially interfere with the rights and privileges hereby authorized."

[Fourputt]

Is competition material interference?

Hypothetical- Pro A comes to me for legal advice regarding the following:

A number of years ago, Pro A signed a contract with City XYZ that permitted him to offer golf lessons at a driving ranged owned by the City in exchange for 5% of the gross lesson revenue he generated. The contract says, in part,

"Nonexclusive Use. This permit is not exclusive. "City XYZ" reserves the right to use or permit others to use any part of the driving range for any purpose, provided such use does not materially interfere with the rights and privileges hereby authorized."

It is a large driving range with lots of stalls and Pro A has enjoyed a steadily growing business until this past summer when the city signed the same contract with Pro B which resulted in lesson revenue dropping 15% for Pro A compared to last year.

Should I encourage Pro A to sue City XYZ (& Pro B) arguing the contract with Pro B materially interferes with the rights and privileges previously granted Pro A?

Non-exclusive is self explanatory.  He hasn't a leg to stand on.

[Phil McGleno]

Seriously dude-WTF is it with you and these 'twists' that you add in to ALL of the threads you start after youve gotten answers already? Knock it off.-It was a joke for awhile but its become the actual Gods Honest Truth.[quote name="MEfree" url="/t/77497/golf-lessons-is-competition-material-interference#post_1063133"]Would anyone's answer change if Pro A was not only permitted to give lesson in exchange for paying the city 5% of the gross revenue, but, as part of the same agreement, had been authorized to build and manage the driving range as well as ancillary businesses including a pro shop and restaurant on the city owned property (which had previously been a vacant lot) in exchange for paying the City 5% of the gross sales of all businesses. [/quote] Still doesnt change my opinion btw-The pro has no legal basis for filing a lawsuit.

[Golfingdad]

Seriously dude-WTF is it with you and these 'twists' that you add in to ALL of the threads you start after youve gotten answers already? Knock it off.-It was a joke for awhile but its become the actual Gods Honest Truth.

Still doesnt change my opinion btw-The pro has no legal basis for filing a lawsuit.

Could not possibly agree with this more.  Seriously, @MEfree ... this game of yours is old and tired.  Enough.