New York Appellate Court Reverses Lower Court’s Denial of Preliminary Injunction and Enjoins Former Employee from Working with Rival Sports Management Agency | Seyfarth Shaw LLP

[co-author: Briyana Louis]

On March 8, 2022, Excel Sports Management, LLC commenced an motion within the Supreme Court of New York, Commercial Division, alleging that its former Vice President of Basketball Partnerships, Eric Eways, resigned his employment in favor of employment with Klutch Sports Group, LLC, in violation of a restrictive covenant in his employment settlement. The non-compete, ruled by New York regulation, prohibited Eways from working for Klutch and different specifically-named opponents for eight months post-separation.

Excel concurrently moved for a preliminary injunction towards Eways and Klutch. Excel alleged that Eways was a novel worker tasked with sourcing off-court advertising alternatives and endorsement offers for its athlete purchasers. Excel argued {that a} preliminary injunction was essential to stop Eways from diverting the company manufacturers with whom Excel had developed relationships in favor of offers with Klutch’s purchasers.

The movement decide denied the injunction, holding that any protectable pursuits concerning Excel’s model companions might be protected by extra slender non-solicitation and confidentiality provisions. The court docket additional said that it was not satisfied that Excel would undergo irreparable hurt as a result of the diversion of any such enterprise relationships might be compensated by means of financial damages. In this regard, the court docket appeared to seek out compelling Klutch’s arguments that there was no proof of consumer poaching and that the model companions at challenge are non-exclusive and not purchasers of Excel.

Excel appealed from the choice and concurrently moved for a preliminary appellate injunction, in search of once more to enjoin Eways from working at Klutch in accordance with his non-compete settlement. On May 26, 2022, the Appellate Division, First Judicial Department, granted the injunction prohibiting Eways from working for Klutch pending the listening to and dedication of the attraction, or by means of October 15, 2022 (8 months from the date of Eways’s resignation from Excel) whichever happens first, successfully reversing the decrease court docket’s ruling.[1] The appellate court docket’s ruling is at present topic to a pending movement for reconsideration.

Key takeaways

Despite the current development of legislative efforts in New York and elsewhere in search of to curtail the enforcement of employment-based non-competes, the Appellate Division, First Department, has signaled that New York continues to be a hospitable discussion board for employers in search of to implement such covenants. However, given the absence of a written opinion accompanying the appellate court docket’s injunction order, the precise foundation for the appellate court docket’s order is unsure. Nevertheless, in granting the injunction, the appellate court docket should essentially have discovered that Excel glad each a probability of success on the deserves of its breach of contract declare and that irreparable hurt would outcome to Excel within the absence of the injunction, regardless of the alleged lack of proof of direct solicitation. It is probably going that the appellate court docket was persuaded by Excel’s argument that Eways had important publicity to Excel’s confidential info regarding its model companions and advertising methods. It can also be noteworthy that Klutch was particularly recognized as a competitor in Eways’s non-compete.

The customary underneath New York regulation continues to be {that a} restrictive covenant in an employment settlement is just enforceable if essential to guard an employer’s reliable enterprise pursuits, [2] and “(1) isn’t any higher than is required for the safety of the reliable curiosity of the employer, (2) doesn’t impose undue hardships on the worker, and (3) is just not injurious to the general public.”[3] However the decrease court docket’s ruling, though reversed, presents a cautionary story that particular person judges proceed to have important discretion within the software of this authorized customary, and figuring out whether or not a probability of success on the deserves and irreparable hurt have been established, with various and unpredictable outcomes, together with narrowing the breadth of non-compete provisions. We will proceed to watch this case and report on any vital developments.


[2] Kanan, Corbin, Schupak & Aronow, Inc. v. FD Int’l, Ltd., 8 Misc. 3d 412, 415 (Sup. Ct. N.Y. Cnty. 2005);

See additionally Arthur J. Gallagher & Co. v. Marchese, 96 A.D.3d 791, 792 (second Dept. 2012).

[3] BDO Seidman v. Hirshberg, 93 N.Y.second 382, 389 (1999).

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