OnlineCasinoReviewer's legal challenge against Affiliate Edge

[Biti]

Correct. Arbitration I have been advised could cost anything up to and upwards of £50k if the arbitrator ruled against the claim. For £5,000 that does not make commercial sense.

My claim was STAYED and has not been proven one way or the other.

50K? I notice there's no such thing as reasonableness and fairness in UK courts. The best thing in that case perhaps is to fight them with their own weapons, hence with some tropical LTD that well be flushed in case of a loss.

 

[Webzcas]

£50k or more! Hence they have a Binding Abitration clause.

 

[Biti]

£50k or more! Hence they have a Binding Abitration clause.

I think this case is some kind of a first step. The result is disappointing, especially for you, but some lessons are learned:
- always ask advice to a specialized lawyer before going to some court;
- drop your affiliate contracts in an empty (offshore) company and go with that company to court, not with your main company on which name are all the websites, bank accounts, etc.

And contracts should be less one-sided.

 

[ThePOGG]

With this conversation in mind, and with a mind to consideration of how an Affiliate Union might be structured, I took some basic legal advise regarding the enforceability of the standard 'modification' terms within the UK. I've chosen the UK because many affiliate contracts contain a term stipulating that the contract is 'governed by the laws of England and Wales' making this advise directly relevant and a good testing ground.

The basic feedback I've received so far is that no affiliate should ever agree to any contract containing such a term. Full stop. That the term would be expensive to challenged and if valid effectively create a situation where no contract actually exists in terms of granting any rights to the affiliate. In fact, without challenging legally, the operator could actually alter the contract to charge the affiliate for each referral and add a penalisation clause for termination and there would be nothing the affiliate could do.

The flip side to this is that if presented with a serious challenge (i.e. a reasonable number of affiliates pulling together to jointly fund such a challenge) there is a high probability of any challenged operator looking to settle out of court. The reason for this is that if the challenge was successful the ruling would not only apply to those affiliates involved in the challenge, but to all affiliate contracts the operator had engaged. The risks of setting that precedent would be huge for the defending party (and the industry), far higher than the risk of the legal expenses on the other side. Consider a collective of 50 or 100 affiliates working together - even if the legal expenses for both parties ran to £200k (assuming a loss and having to pay the defendant's fees), that's still only £2k-£4k per participating affiliate. Btw, I plucked the £200k figure out of the air - it is not something I've been quoted. The single figure that has been discussed so far was actually £50k.

So at this stage the recommendation we've received has been to take specialist legal advise to research case law relevant to this type of situation. That is going to be relatively expensive (~£1.5k-£2k). This is something I think we are going to do. It is a gamble. If it comes back that these terms are effectively unchallengable then there would be little purpose to an Affiliate Union. If it comes back that they are challengable then there would need to be a reasonable number of affiliates willing to pull together to mount such a challenge the next time a company decided to take action down these lines for an Affiliate Union to be of any effect.

I will also look to establish how arbitration clauses would impact the dynamic - if the term is unlikely to be valid then an arbitrator could not make a valid ruling on a case without a court ruling on the validity of the clause.

If the advice we receive suggests that these terms may not be valid we will publish this advice to allow other affiliates to reference it when they discuss various issues with the programs they work with.

TP

 

[Biti]

If it comes back that these terms are effectively unchallengable then there would be little purpose to an Affiliate Union.

I think in that case it's 5 past 12 and there's even more reason to organize a bit. To try to get a bit better terms, because this would basically mean that any program could at any moment decide to just stop paying life time RS.

 

[ThePOGG]

because this would basically mean that any program could at any moment decide to just stop paying life time RS.

While that is one to the potential consequence, it could actually potentially be far worse than that. These terms effectively give the operator a blank cheque.

The problem with organising a union under these circumstances is that it would require member to agree to not work with specific programs. This has always been the biggest barrier to getting affiliates to work together and understandably so. On it's most basic level there is significant synergy between ThePOGG and Casinomeister. However there are still programs that we take starkly different positions on. If one of us was to insist that one of these problem was an absolute red line then the other is immediately alienated and cannot make up part of any union. That's two affiliate sites with a lot in common. The divergence with other affiliates is huge.

To my mind it would be best to avoid trying to dictate which affiliate programs members could work with, but without standing together in negotiations, or the threat of taking collective legal action, the bargaining power of any union would be negligible.

TP

 

[Biti]

Valid points, dropping a program that is generating half or even more of your income, isn't easy. For my self, I try to spread it way more, but I know some affiliates are basically depending on one or two brands.

But, in the end, if people keep on working with programs that change the rules when they feel like, nothing will change. Bikes will be stolen as long as people buy stolen bikes. That 50% of the income that a brand is generating, is at stake. Daily. Every day - monday to friday - some office guy can decide it's time for cost reduction and affiliates are the next in line.

 

[TheGooner]

I took some basic legal advise regarding the enforceability of the standard 'modification' terms within the UK.
...
The basic feedback I've received so far is that no affiliate should ever agree to any contract containing such a term.

That's a normal legal position for you - not useful and completely at odds with real world situations.


Regarding the new group :

I will monitor your efforts to create an affiliate organisation with interest - but as you have pointed out there is unlikely to be a single voice or unanimous agreement regarding suitable programs. And there are likely to be other objections too.

For example, the name "Union" has negative connotations for me, primarily due to the actions of trade unionists around the world. Let's be clear I wouldn't take instruction to begin "strike action" or be directed to boycott any organisation at the direction of an affiliate organisation - or cede my own ability to make business decisions.

I have a dozen reputable groups that I work with, and if I choose to stop working with them because they won't negotiate with the new affiliate group - that's my choice - not a mandate or dictate sent down by some cloth capped union representative.

I would prefer to see a tag like association, alliance, league, guild or federation ... anyone for "League / Guild of Gambling Gentlemen"? - No ... well OK, perhaps not - but hopefully the gist of my concept is understood. I can support a lobby group, a collective, an association? But "union" ... not so much.


Good luck.

 

[ThePOGG]

Fair comment TheGooner, but if you see my comments a few posts back you'll see that what I have in mind would not hinge on dictating to affiliate members which programs they can/can't work with. That's a non-starter and to my mind the biggest reason nothing has ever successfully come together before.....

 

[Evil Homer]

This is a very interesting thread. I've been out of the country for a few months and have come to this late, but it is quite relevant to me.

@ThePOGG to follow up on the legal advice you received. I actually decided last year to take action against a major operator. The value of the claim was likely to be too great for the small claims court and so I decided to take the plunge and engage a solicitor and barrister. As you're aware costs could end up being significant but I refuse to be bent over and given the good news just because the operator has more money than I do.

At this stage I am not willing to publish the basis of the claim or any more details on a public forum, at least until I have consulted the legal guys to ask whether it is wise to do so. However I'd be willing to exchange information in private and also provide any details that I can as the case moves forward. What I'm doing should be pretty relevant to the conversations you have had so far and the work you (possibly) are intending with the union.

 

[TheGooner]

I understand ThePogg.

I read your comments and agreed with the tone - but I find it pays to put points (both support and contrasting) down into the thread for discussion. In case in point - you acknowledge the issue but then wrote a final sentence that was concerning.

... but without standing together in negotiations, or the threat of taking collective legal action, the bargaining power of any union would be negligible.

My point is the group doesn't have the mandate to "threaten" on my behalf.

 

[Evil Homer]

PS completely agree with Gooner's comments regarding unions in general. I thought Thatcher had got rid of them all. He's right that association is a much better name for it!

 

[ThePOGG]

I understand ThePogg.

I read your comments and agreed with the tone - but I find it pays to put points (both support and contrasting) down into the thread for discussion. In case in point - you acknowledge the issue but then wrote a final sentence that was concerning.



My point is the group doesn't have the mandate to "threaten" on my behalf.

You've mis-interpreted the statement made - I was referencing directly the point that if we rule out mandating which programs an affiliate can work with, then the only other power that a union type of organisation could hold would be collective legal action. If neither of these options were available there's no function to the body.

This statement was made because I was flatly ruling out restricting the programs that members could work with and because I previously stated that legal challenge may not be an options. In which case there would be little point to pursuing the idea full stop.

And I'd absolutely agree that no individual should be handed the right to speak for or make decisions for any form of collective. There would have to be a democratic system in place where the membership decided which actions would be taken. If you couldn't agree to follow the majority will of the collective membership then you'd be entirely right to suggest that this may not be an enterprise suited to you.....

The strength of any union is in standing together to improve the rights or the members collectively. If the members cannot agree to work together then none will see the benefits of collective action. In an industry where affiliates are always the weaker party in any negotiation I would suggest that they are sorely in need of any support they can get to defend their rights, and while I will present a case in the near future for what may be a workable system, it will not be for everyone and in fact my thoughts on this are that it should not be extended beyond a certain scope. It may be possible to gather together enough affiliates that share a viewpoint to make this work but my genuine expectation would be that it will fail. Too many would be as damaging as too few in this instance and trying to point affiliates in a aligning direction is most often like trying to heard cats.

TP

 

[ThePOGG]

Hi Evil Homer,

I'd be happy to share any information we have in trade or just generally to assist your efforts. If you feel able to share your experiences I'd be interested to hear them.

With regard to the word 'union' - honestly, when the meaning is the same what's the purpose in changing the term just to avoid what some consider to be a dirty word? It's similar to the education system's continued merry-go-round of terminology for learning difficulties. Ideologically I'd fall firmly into the socialist category so I have a positive association with the word union. That said I don't much care what it's called as long as it achieves the core objective. My point is this though - if everyone is going to get bogged down in their own political ideology with regard to this type of organisation it's going to be far more time that it'd be worth to wade through these discussions to the ones of practical import to actually doing something. And presumably doing something is what everyone would be most interested in achieving

TP

 

[Webzcas]

Just an update. I want to express my gratitude to all of you who have not only pledged and made financial contributions towards my costs, but also those of you that have sent supportive messages. I truly do appreciate it.

I will be recording a video shortly, thanking each and everyone of you. But for the time being, you can see for yourselves which sites have helped me out. THANK YOU!!

https://www.onlinecasinoreviewer.com/igaming-webmasters-resource/ocr-legal-challenge/

 

[ThePOGG]

Affiliate Union proposal - https://www.affiliateguarddog.com/community/threads/affiliate-union.11459/

TP

 

[ThePOGG]

Just to let everyone know - I've just updated our article to include the links of the donors.

TP

 

[PROFRBcom]

Just to let everyone know - I've just updated our article to include the links of the donors.

That just leaves CasinoMeister to update

On another note... nvm, decided to PM this part instead.

 

[Jackrabbitt]

Hi, I noticed you gave a positive review to BestPartners & Commission.bz, do you still feel the same?

 

[Jackrabbitt]

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