NCA (non-compete agreement»): is it NDA’s nasty half-sister or an effective regulator of the consequences of a terminated legal relationship? A non-compete agreement, also known as a non-disclosure agreement, serves as an addition to an employment contract or, in our case, an e-sports contract. If NDA is widespread enough, then NCA is not so widely used and requires the close attention of lawyers.
The purpose of a non-compete agreement for an e-sports organization is the protection against fraudulent actions by e-sports players after the termination of legal relations. This type of agreement is quite applicable in the opposite direction, since NCA can act as a guarantee for sportsmen in case of illegal actions of game development companies. In addition to its main purpose, the non-compete agreement prevents the leak of unique knowledge, skills, ideas, technologies, and also serves as an assistant in maintaining long-term cooperation with highly qualified e-sportsmen.
NCA conclusion is a normal practice for many countries in Europe and the United States. However, in Ukraine we may face difficulties that are connected the following things. According to the Constitution of Ukraine, everyone is guaranteed the right to work, and Article 27 of the Civil Code of Ukraine establishes that a transaction that restricts the ability of an individual to have civil rights and obligations that are not prohibited by law is null and void, therefore the courts do not recognize the legal force of the non-competition clause.
Instead of the conclusion, we will give practical advice that will help to resolve legal relations in the e-sports field effectively for both parties. At the moment, in the context of the Ukrainian legislation, NCA serves only as a preventive measure, but nevertheless, if there is still an intention to conclude a non-compete agreement several factors should be taken into account: a real protection of the rights and interests requires to write the individual «non-compete agreement»; the content of the contract should include the specific nature of regulated legal relations (subject matters, applicable legislation, judicial practice); the signing of NCA separately from the main contract with the ability to withdraw from this agreement. The competent and correct approach of lawyers to the drafting of a non-compete agreement will help to avoid aggression of the former «employer» and to maintain the loyalty of the players.