Friday, April 30, 2010

Force Majeure: Don't Blame Me, Blame God!

On the evening of Sunday, April 18, my wife and I were scheduled to be enjoying our first night attending a long planned arts conference in France. We imagined ourselves sitting at a bistro in Saint Michel taking in the golden glow of a romantic evening in Paris. Instead, I found myself eating fish tacos with my parents in Virginia. We, like many others, were the victims of the Icelandic volcano-whose-name-cannot-be-pronounced which cancelled almost all trans-Atlantic travel. As the ash spread, so did the cancellations of artists who could not travel to Europe and artists who could not travel to the United States. And then the phone calls began: grumblings from presenters upset because artists were unwilling to change flight plans or take trains as well as grumblings from artists who were upset that presenters were unwilling to compensate them. After all, the volcano wasn’t their fault! I even heard from a manager lamenting that just because the Force Majeure clause in his artist’s contract allowed for a cancellation, he should still be entitled to a commission for booking the engagement in the first place!

“Force Majeure” is nothing more than the fancy, legalistic, and less religious jargon for what everyone else would call an “Act of God.” In essence, a “force majeure” or Act of God is a contractual provision which permits a party to cancel or breach the contract without having to pay damages or incurring any liability to the other. Whereas a cancellation or termination clause typically permits a party to cancel or terminate for ANY reason, a Force Majeure clause allows a party to cancel or terminate only if something happens which is beyond anyone’s control and which could not have been anticipated. So, if the Force Majeure forces the artist to cancel, he/she is not liable to the venue for the venue’s lost ticket sales, lost out of pocket costs, or the costs of hiring and advertising another artist or performance. Similarly, if the Force Majeure forces the venue or presenter to cancel, it is not liable to the artist for the artist’s lost fees or out of pocket costs.

However, nothing in the arts is ever that simple. Many people, incorrectly, assume that there is a common understanding or standard of Force Majeure and that, in the event of a fire, blizzard, flood, or other unforeseen event, there are automatic protocols which will govern the situation. In fact, you will find that presumptions and assumptions differ wildly when it comes to Force Majeure and that people, in the midst of a crisis, tend not be at their most rational. For example, I had one of my clients sued by a presenter when the artist cancelled his concert upon the death of the artist’s mother. Why? Because the “Act of God” clause in the presenter’s contract provided for the death or incapacity of the artist and did not extend to the artist’s relatives or family. (Granted, the presenter also happened to be a heartless, greedy jerk, but that wasn’t the “official” reason.) On the other hand, one of my clients was outraged when, just a few months ago, a venue was forced to cancel her performance due to the “snowmagaddon” that swept the East Coast and wanted the return on the deposit the venue had paid. The artist contended that she was entitled to keep the deposit to cover her lost fees and costs. However, what about the venue’s lost revenue and costs? According to the artist, the Force Majeure clause was intended to protect her, not the venue. Or there was the university-based performing arts center which claimed the right to cancel due to Force Majeure because their facility shares a parking lot with the university’s stadium and when the school rescheduled the homecoming game, the theater lost its parking. I have also known artists who claimed that an opportunity to perform in a movie or sing at the Met was an Act of God entitling them to cancel their conflicting engagement as well as venues who claimed that poor ticket sales or loss of funding could similarly be ascribed to the hand of God. I even know of a manager who claimed that the failure of his artist to obtain a visa was an Act of God which entitled the artist to full payment regardless of the fact that the artist was legally barred from performing in the U.S. (While many believe God is everywhere, I have it on fairly good authority that God dwelleths not in the halls of USCIS!) Just because something is unanticipated, unexpected, or undesirable does not make it an Act of God that legally allows a party to cancel and walk away from an otherwise binding and enforceable contract.

Fortunately, Force Majeure is a creature of contract and, like all other contractual provisions, can be drafted to suit the specific needs, concerns and circumstances of the situation. Unfortunately, like most contractual provisions in arts contracts, Force Majeure clauses tend to err on the side of brevity and oversimplification, rather than nuance and specificity. Or, worse, many just “assume” that all contracts are cancellable if there is an Act of God. In fact, if there is no Force Majeure clause, or the Force Majeure clause is so broad as to be meaningless, you are left with a contractual concept known as “impossibility” whereby a breach of a contract may be excused if performance was truly impossible—not merely inconvenient, but truly impossible. For example, if an artist’s flight is cancelled, would it have been impossible for the artist to drive all night or take a later flight? As the name suggests, meeting the standard of “impossibility” is often, in and of itself, impossible.

The better solution is to have better Force Majeure clauses. It is never too late to dust off your forms and templates and check your Force Majeure clause to make sure that, first and foremost, there is one and, second, it is comprehensive enough to cover your specific circumstances and concerns. While no contract can even contemplate every possible scenario, you want your Force Majeure clause to do more than simply state that “either party can cancel in the event of an Act of God.” Rather, you want your clause at least to provide some parameters within which to address two specific questions: (1) What constitutes a “force majeure” event? (2) What are the ramifications?

Let’s assume the venue is open, but the artist must cancel due to a Force Majeure in the artist’s life or part of the world. Does the artist have to reimburse the presenter for any of its lost marketing expenses or costs? If the artist had already received a deposit, does it have to be returned? What if it’s the presenter who experiences the crisis, but the artist is ready, willing, and able to travel and perform? Does the presenter have to make a good faith effort to re-book the artist at a future date? Can the artist keep any deposits or advanced payments to offset the cancellation? Can an artist claim Force Majeure due to the death or injury of a family member or relative? Can a venue claim Force Majeure if it experiences an unexpected budget shortfall or a financial crisis? What if the engagement is for a series of performances and a Force Majeure forces the cancellation of only some of the performances? Is the artist’s engagement fee reduced on a pro-rata basis? What if the artist is a group and a member becomes sick or injured? Does the group have the option to find a replacement or can the venue claim Force Majeure and cancel? Does it make a difference if it’s a key member of the group?

There are no right or wrong answers. The only wrong approach is to wait until after the Volcano has blotted out the lights of the marquee or the tsunami has filled the orchestra pit to pull out your contract and see what it says.

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