From 1962 until June 30, 1982, appellant Beckman was employed by Cox Broadcasting Corporation (Cox) as a meteorologist and “television personality,” appearing primarily on Cox’s affiliate, WSB-TV. In April, 1981, Beckman entered into a five-year contractual agreement with WXIA-TV, a competitor of Cox, to commence working for WXIA as a meteorologist and “television personality” when his contract with Cox expired on July 1,1982. Cox was made aware of Beckman’s plans and in July, 1981, Cox filed a petition for declaratory judgment, Code Ann. § 110-1101, seeking a determination that the restriction against competition in its employment agreement with Beckman was valid. This restriction provides: “Employee shall not, for a period of one hundred-eighty (180) days after the end of the Term of Employment, allow his/her voice or image to be broadcast ‘on air’ by any commercial television station whose broadcast transmission tower is located within a radius of thirty-five (35) miles from Company’s offices at 1601 West Peachtree Street, N.E., Atlanta, Georgia, unless such broadcast is part of a nationally broadcast program.” Following a hearing the trial
On June 16, 1982, Beckman formally demanded to be released from the restrictive covenant in his contract. When Cox refused Beckman filed this declaratory judgment action to ascertain the validity of the restrictive covenant under Georgia law.
The trial court found that the employment contract with WXIA-TV does not require Beckman to appear “on-air” during the first six months of his employment; that Beckman, under the terms of this agreement, is rendering “substantial duties and services to WXIA-TV”
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for which he is being compensated; that during the term of Beckman’s employment with Cox, WSB-TV spent in excess of a million dollars promoting “Beckman’s name, voice and image as an individual television personality and as part of WSB-TV’s Action News Team”;
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that Beckman is one of the most recognized “television personalities” in the Atlanta area;
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that television viewers select a local newscast, to a certain degree, based on their “appreciation of the personalities appearing on the newscast”; and that local television personalities “are strongly identified in the minds of television viewers with the stations upon which they appear.” The trial court also found that in March, 1982, WSB-TV instituted a “transition plan” to reduce the impact Beckman’s departure would have on the station’s image. As part of this transition plan Beckman was removed from one of the two nightly WSB-TV news programs. Additionally, WSB-TV undertook an extensive promotional campaign, featuring both Beckman and his replacement as members of the “Action News Team.” This transition plan contemplated the gradual phasing out of Beckman from the “Action News Team.” The station projected that Beckman would then be “off the air” in the Atlanta market for six months, permitting WSB-TV to diminish its association with Beckman in the public’s
The trial court concluded that to permit Beckman to appear “on air” in the Atlanta area during the first six months of his contract with WXIA-TV would “disrupt the plans and ability of WSB-TV to adjust successfully to the loss of a well-known personality that it has heavily promoted before it must begin competing with that personality in the same marketplace.” The trial court also determined that WSB-TV would be injured by allowing a competitor to take advantage of the popularity of a television personality which WSB-TV had expended great sums to promote before WSB-TV had time to compensate for the loss of that personality. The trial court further found that WSB-TV has a legitimate and protectable interest in the image which it projects to the viewing public.
While the trial court concluded the damage to WSB-TV would be great if Beckman were permitted to compete against it within the proscribed six months, the court reasoned that Beckman would suffer little harm if the covenant was enforced against him. The trial court found that Beckman is currently employed, without loss of remuneration, and that, based on the testimony of expert witnesses at trial, “Beckman will not suffer substantial damage or loss of recognition and popularity solely as a result of being off the air during the first 180 days of his five year contract with WXIA-TV.”
The trial court ruled that the restrictive covenant is valid under Georgia law as it is reasonable and definite with regard to time and territory and is otherwise reasonable considering the interest of Cox to be protected and the impact on Beckman.
Beckman appeals this decision in case no. 39176. In case no. 39177 Cox appeals the trial court’s ruling that Beckman is not estopped from challenging the reasonableness of the restrictive covenant based on his sworn statements at the hearing in the July, 1981, declaratory judgment action that he did not intend to violate the restrictive covenant.
1. Case no. 39176. Beckman concedes the covenant not to compete is reasonable with regard to the time and territorial restrictions, but urges that it is otherwise unreasonable in that it is broader than is necessary for Cox’s protection.
A covenant not to compete, being in partial restraint of trade, is not favored in the law, and will be upheld only when strictly limited in time, territorial effect, the capacity in which the employee is prohibited from competing and when it is otherwise reasonable.
Howard Schultz & Assoc. v. Broniec,
In determining the legitimacy of the interest the employer seeks to protect, the court will take into account the employer’s time and monetary investment in the employee’s skills and development of his craft. See, e.g.,
Orkin Exterminating v. Mills,
Beckman argues, however, that the detrimental impact of the restrictive covenant on him outweighs the need to protect the interests of WSB-TV. Beckman maintains that he has already realized a drop in his popularity among the members of his viewing audience 4 and that a prolonged absence from the airways will have a “disastrous effect on his career.” While the evidence is not without conflict, the trial court’s finding that a six month absence from the air will not substantially damage Beckman’s popularity or recognition among the public is well-supported by the record.
Beckman also urges that the “television personality of Johnny Beckman” belongs solely to him and that he is entitled to take this
2. Because of our decision in case no. 39176, we do not reach the merits of the cross-appeal in case no. 39177.
Judgment affirmed.
Notes
The record shows that Beckman is currently “gathering and preparing weather news and information, preparing weather forecasts, and preparing the information for presentation on the air.” He is not, however, appearing “on air” to present the weather forecast.
The evidence shows that from 1978 until the expiration of Beckman’s contract on June 30,1982, WSB-TV spent over $750,000 promoting Beckman and the “Action News Team.”
One study indicates more than 97 % of television viewers sampled in Atlanta recognize Johnny Beckman.
As evidence of this, Beckman points out that fewer persons recognize him in public and seek his autograph than when he was “on the air.”