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Ameise

Non-Compete Legality, Illinois

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I recently quit my job in game development where I was there more than two years, in Illinois. My contract had a clause stating that I could not work in game development within something like a 50-mile radius (basically, the entire urban area in this region) for a period of one year. I have a new job not in game development, but want to do game development on the side.

 

Is a non-compete in this case enforceable - that is, is preventing me from doing game development a "legitimate business interest" in the eyes of Illinois courts?

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I can't address Illinois law, but I have a question about your question. What kind of game development do you want to do within the next year (and I assume you live within 50 miles of your former employer) - is it contract? Or is it indie?

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From what I've heard, non-competes are very often not actually enforceable... but that's just anecdotal crap :lol:

It would also be very bad PR -- "Developer sues indie developer for quitting their job!".

 

If you're concerned, ask a real lawyer if it's enforceable, or, go and ask your ex-employer. They might be nice enough to give you the green light to do gamedev on the side -- just tell them that you've got a new non-games job, but you wish to do games on the side, and ask if they have any intention of attempting to enforce the non-compete. I've worked at developers in the past where people have gotten permission to violate the non-compete while still working there - e.g. they wanted to make an indie game on their weekends!

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As always, discuss with a lawyer.

 

There is always the spirit of the agreement and the letter of the agreement.  There is the nature of the industry and your right to earn a living.  And there is the probability that an employer will go through the cost of enforcing it.

 

 

 

In practice, non-compete agreements are not enforced unless there was some serious harm to the former employer.  

 

If you were jumping from a high-profile job at one company to a high-profile job at another company you would likely have many fans that would switch.  That could do serious harm, and that could be enough for an employer to attempt to enforce the non-compete.

 

If you were working on a big-name product and immediately started a direct competitor for that product, that could do serious harm, an employer would likely attempt to enforce the non-compete.

 

If you were building your hobby project that was very similar to the product in your day job, and you release it around the same time as your day job's product and end up drawing customers away, an employer would likely attempt to enforce the non-compete.

 

 

But if you are just a peon in the company and you are not really competing with the company and your transition doesn't cause any kind of conflict or harm to the company, they probably won't care.  And if they did care, they probably would not invest the small fortune needed to enforce the agreement.

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Starting with the usual disclaimer of "I am not a lawyer" -- the premise of your non-compete being a geographic lockout I would assume to be completely unenforceable; it seems to serve no other purpose than to make you unable to leave your previous employer without the undue burden of uprooting your entire life. The year duration is also somewhat unusual in my experience. Usually a non-compete says something to the effect of "You can't go work on a directly-competing product for 6 months" or sometimes "You can't go work for anyone who's making a direct competitor, even if you're on another team, for 6 months." Clauses which art least have the air of something other than a punitive intent.

 

Putting the two unusual demands together (the geography and the duration) I frankly question whether the clause was put in by a reputable lawyer at all.

 

Again, I'm not a lawyer and I'd not advise you to make a bet based on my suppositions, but I'd also not be surprised if whatever lawyer you might end up speaking to laughs out loud or sprays coffee all over their keyboard.

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To add another "I'm not a lawyer" comment.  Unless you are poaching current employees from your old job or taking the knowledge you learned to create a product to compete with them it probably isn't worth the cost to try and take you to court.

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You need to review the terms of the contract with the no-compete clause.

Typically they specify a Competition vector, meaning if your hobby of developing is not in competition with them there is no violation.

If there isn't such a condition, the clause likely cannot be enforced in the first place, as the legal position of no-compete clauses is that an employee could learn a technique which is not patented or otherwise protected and then use that technique to elevate potential competition against them in the same market.

If the contract includes terms regarding Competition, and you are not competing in some way, you are in the clear.
If it does not, while the legal standing is highly suspect, you should avoid violating it regardless.
Take a ride with a mobile to outside the specified area, find a nice park and work there....
or speak with an attorney.

Or do something no one seems to think of - speak with the company you entered the contract with and request written exemption for the purpose you intend.

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Generally a contract of employment is only enforceable for the duration of your employment. A non compete clause is generally part of your contract of employment.

Bear in mind I am not a lawyer and I work in the UK.

I dealt with a previous employer who tried to lie and tell me there was a non compete clause in my contract, as I had been headhunted by one of his biggest clients and was due to quit and work for them meaning they were no longer on his books.

I had read the contract before accepting the new offer and knew he was lying - the look on his face when I told him there was no such condition in the contract was priceless. :lol:

Make sure you read your contract and get a lawyer to help you if you must. If your employer thinks as an indie you may be a threat to them there's little chance they'd put an exception in the wording just for you.

Good luck!

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