For a new journalist, or for one working in a small to mid-sized broadcast market, a call from a talent agent can be as exciting as a job offer. Right or wrong, new journalists rely on agents for their ability to “place” them in good jobs as much, if not more, as they do to protect their interests or to negotiate their contracts.
In general, most U.S. states do not regulate talent agents. There are exceptions: some states require licensure as a talent agency, or registration as an employment agency. Some states have bond requirements. Tennessee and Mississippi have no such requirements. Arkansas, interestingly, does require employment agencies to register with the state Department of Labor and imposes penalties for failing to do so. That said, I am told this is rarely-to-never enforced.
Because journalists often make long-term commitments when retaining agents, I thought it would be helpful to summarize the many pros and occasional cons of agency representation. They are organized in the order in which I think journalists rank their value, but this sequence does not necessarily reflect the actual value to be gained from hiring an agent (which I believe is the agent’s ability and authority to negotiate for you).
Headhunter. First and foremost, the best agents and agencies have good relationships with people in the business of hiring. An established agent is familiar with news directors and corporate officers (who may have once been news managers). They know when vacancies at particular stations are about to occur, either as a result of these relationships or because they are, themselves, moving one of their own clients out. For example, if our hypothetical agent represents the investigative reporter at Station A, and places him in a new job at Station B, he knows (perhaps before even the news director at Station A) that Station A is about to have an investigative vacancy. He is then, in theory, uniquely poised to pitch one of his other clients as a candidate for the pending vacancy at Station A.
It is my belief, albeit untested, that this is the primary reason young journalists hire agents. They hope and expect that the agent will place them in a good position in a challenging marketplace, and then move them up to larger and larger markets at the end of each contract cycle. While this may occur, it is an enormous burden to place on an agent, and probably deprecates the real value they bring to the relationship.
Negotiation. Many agents are lawyers; many are not. Many large agencies have lawyers on staff. Even non-lawyer agents are familiar with the common issues facing employees in broadcast contract negotiations and are familiar with those employment conditions which may be alterable or negotiated. An agent who has a pre-existing relationship with a particular employer can perhaps use that relationship to your advantage (assuming it is positive). An agent can and should make demands/requests that you, as a prospective employee, are not comfortable making. After all, you are the one who is going to have to face that news director every day. The agent can be the “bad” guy, the demanding one. I would bet that unrepresented employees more frequently accept the initial offer as stated, whereas represented employees, more often than not, are able to negotiate even moderately improved terms.
In my view, this is the true value of a talent agent, lawyer or non-lawyer. Remember that you are going to have to live with your contract for two to three years. If we accept as true that most young employment candidates do not possess the confidence to “negotiate” for themselves, it follows then that good representation can improve your circumstances for a significant period of time.
It is also true that there remain many employers who flat-out refuse to negotiate with agents or attorneys. They will only negotiate with the candidate. In my mind, this situation typifies the imbalances that exist in the broadcast industry, and strips the candidate of what little bargaining power he may actually have. Now, he is left alone, in an intensely competitive marketplace, negotiating with a strong-willed employer for a job coveted by many, many others. This situation is real, however, and you should be prepared for it.
Career guidance/management. Most, if not all, talent agents routinely engage their clients in reviews of their work. They give advice about writing, delivery, editing, presentation, voice, etc. In many instances, they will cut reels for their clients; the client sends stories periodically and the agency cuts together a resume reel, which will then be forwarded on by the agent to prospective employers. Agents offer therapy when conflicts arise between you and your boss. They offer advice about dispute resolution. They offer encouragement when necessary and affirmation when and where appropriate.
Taxes. At one point, some of the larger agencies also offered end of year tax services through their lawyers and CPA’s on staff. This was offered gratis to more significant clients. While this may still occur, I suspect it is the minority of clients who enjoy this benefit.
Commissions. Agents usually operate on a commission basis, although there are exceptions to this rule. When commissions are involved, agency contracts usually entitle the agent to five to ten percent of your monthly gross wages. In my experience, middle market clients usually should expect to pay an average of seven percent, give or take. Some of the larger market and network clients may be bound to agreements requiring them to pay their agents ten percent (see Geraldo Rivera’s agreement).
Many agencies will require your employer to send your paychecks directly to them, from which they extract their pre-tax percentage, and from which they remit your balance. This can be disquieting to some, but it happens.
In some cases, the commission rate is negotiable.
I should also mention that there are some agents who do not charge commissions. I suspect that these are lawyers, who will bill you by the hour for their legal services (or who may bill flat rates for specific services). Rick Carr, who works out of Denver, is evidently one of these lawyers. His web site is tvcontract.com. I do not know Rick, but his web site was recently brought to my attention and appears to describe this situation.
Commissions that survive the initial contract cycle. Many, if not most commission-based agent agreements provide that if the agent is involved in placing you at Station A, and you renew with Station A at the end of your contract cycle, the agent remains entitled to receive commissions for as long as you stay there.
Surely, this is fair, if the agent is continuing to provide services to you during your time at Station A. Imagine, however, the scenario, where an agent gets you that first job and then does nothing else for you for 10 years, either because you are now able to negotiate your own renewals, or because the new News Director has an anti-agent attitude. Should you still have to give that agent 7% of your salary even though he or she had nothing to do with your renewal/s?
While I think strong legal arguments could be made about the lack of consideration (that thing you are getting from the agent in exchange for his commission), the only way you are going to get out of that obligation is to sue your agent or separate (by agreement) from your agent.
I mention this scenario because it certainly does arise with some frequency and may be frustrating for many clients who do not want to get sideways with their agent or agency. In my experience, most agents are reasonable about this issue. Like you, agents have reputations to protect. They want people to hire them and, most importantly, they want their clients (and prospective clients) to trust them and to contribute to the good will associated with their agency. If you are in a situation like this, and it does not feel fair, talk to your agent about it. In most cases, I believe your agent will find a way to do the right thing. In my opinion, if the agent has provided you any of the services described above (negotiation, career guidance, tape review, advice, etc.) then he or she is probably entitled to continuing commissions, even if he or she was not directly involved in your most recent contract renewal. By contrast, if you have not heard from your agent for ten years, other than to receive invoice-related correspondence, you may have an argument for separation and you should discuss this with your agent.
Agents want to preserve good relationships. It may seem strange that I’ve included this as a con, because it is also a pro. It is nevertheless a truism that for an agent to be successful, he must maintain strong relationships with those on the employment side. Clients know this and it has, traditionally, raised questions about whether the agent is truly always going to act in the client’s best interest when to do so may alienate the agent from a particular news director.
Obviously, an agent should act in his client’s best interests. Lawyers have legally enforceable duties to do so. As a result of this perceived “conflict” though, clients sometimes worry when things get tough, whether their agent will go to the mattresses.
Imagine you are fired from a large market station and your employer offers you a sum of money in exchange for your release of your right to sue them for some form of discrimination. Your agent will probably get involved in trying to negotiate an appropriate sum – i.e., the settlement. What if you cannot agree or feel you have a strong legal claim for employment discrimination? I have not investigated this, but I suspect that your agent may not want to have his or her agency represent you in bringing suit against a media group. My suspicion is that they may help you to evaluate the risks and benefits of bringing suit, that they will refer you out to a law firm, and that they will not be involved in any way in paying for your legal action. I have reviewed a number of agent contracts and have never seen a provision whereby an agent agrees to bring suit on your behalf. That is not to say they do not exist, just that I have not seen one.
To be clear, I think the agent’s goal when their client is fired is to avoid litigation. The industry is small and litigation can be expensive and damaging. I think good agents can get good results for their clients without having to commence an EEOC charge or litigation. That said, when companies become unreasonable or intractable, an agent unwilling to become adverse with your employer may become powerless to improve your circumstances.
The purpose of this post is not to confuse, but rather to set forth the competing arguments for and against hiring an agent. These are the issues you should expect to face and the concerns you should expect to have. A good agent can be fantastic for your career. As with your employment agreement though, you will likely be asked to commit contractually to that agent for a fixed period of time. Your relationship with your agent will be better and stronger if you have considered these issues beforehand.