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Splinter Cell Developers Defect, Ubisoft Objects
Thanks to GameSpot for their story discussing a legal battle brewing in Canada between Ubisoft and Electronic Arts over 5 key developers on Ubisoft's Splinter Cell stealth game series, recently departed to work at the new EA Montreal. Apparently, Ubisoft have tried to legally enforce a clause that "...limits the ability for those who sign it to work in the North American game industry for a period of one year after leaving the company", presumably concerned that this alleged 'poaching' would set up a competing product to their important franchise. However, Jeff Brown of EA raged pointedly: "It seems that Ubisoft thinks of Montreal as a plantation - any worker who dares to escape the Ubisoft plantation will be hunted down by lawyers and forced out of business."
There are 4 sides here: State, worker, Ubi, and EA.
Ubi has all the cards. The valid signed contract with the workers.
The workers have nothing. They appear to have flagrantly violated the contract.
The state has two interests. First to uphold[or not] a legally valid contract presented by Ubi. Second, to keep workers working and not on welfare.
EA is a wild-card because they are not actually mentioned in the contract, but could smooth things over.
The judge can:
1. Order the workers to quit by the letter of the contract, and/or pay monetary damage to Ubi for violating the contract and perhaps telling business secrets. [harshest solution,highly unlikely]
Judges like comprimise so...
2. Judge may restrict employees from performing certian functions at EA. Or, enforce the Geography restriction. This keeps Ubi grudged but satisfied, and the workers eating.
at this point the options fall to EA as the wild card. EA can hang them out to dry, and give up any good faith employment arrangements with them, or, EA can offer the employees options they think Ubi would settle for. Remember EA isn't a defendant, so they can't actually deal.
a. EA could offer the [now EA] employees positions at an EA location of approperiate geographic distance. [and of course help with expenses] Being in say, California may be enough for the judge to grace this as outside his juristiction...problem solved.
b. Offer an agreement to the employees to do non-game related work for EA for the 1 year term. Perhaps hell desk, networking support, evangalism, mailroom, etc. Such an agreement is fairly common when the company is sued. Of course this means EA doesn't get the use of the employees. this would be generous.
c. contract them out to a shell company for the year. Send them to work on BeOS or something equally distant and outside EA. Again, requires EA to be nice.
d. Can the guys as usless to the company and too many hassles. Problem solved. No more employment. Contract happy. workers hungry, but it's not the courts problem
3. I don't see the judge tossing this out, per say. Ubisoft has some serious damage done here, after all, it looks like even the hiring manager was from Ubi. The contract was clearly known by everyone involved, and judges don't like to just toss them out on principle of personal responsiblity.
EA clearly led them into this mess, by opening up shop across from Ubisoft. The workers are EA employees right now. This really depends on how will EA will take care of it's workers...rather than the judge's ruling.
Firstly, the non-compete clause may not be valid, as I outlined above, in which case UbiSoft has no cause of action (in layman's terms, "a leg to stand on"). The court can sever a portion of the contract and leave the rest intact. Secondly, the state has a third interest: upholding free market principles. If UbiSoft wishes to retain its employees, it should have to do so by providing suitably favourable working conditions, just like anybody else. Given that the power balance in the labour market is usually tilted heavily in favour of the demand side, most jurisdictions have labour laws modifying the legal position in favour of the workers, not employers.
Judge may restrict employees from performing certian functions at EA. Or, enforce the Geography restriction.
Unlikely. A judge can sever a void term, but s/he can't rewrite it into something not in contemplation by the parties at the time of agreement. In relation to orders binding employees, UbiSoft may indeed have claims in IP, confidential information, etc, as I and others have outlined above, but they have to proceed on those grounds, not on the claim for breach of contract. At present, there is no allegation that the defendant ex-employees have infringed UbiSoft's IP or confidence, so there's no dispute for the court to resolve on those points.
EA clearly led them into this mess, by opening up shop across from Ubisoft. The workers are EA employees right now. This really depends on how will EA will take care of it's workers
Indeed, but EA may find itself in trouble if and when UbiSoft starts claiming that EA products contain technology or information taken by the defendants to this action. Given that EA is the 800 lb. gorilla here and probably better able to compete on wages and working conditions, it's probably in their interests to fight this one out so they can poach from the local industry with impunity in the future.