The relationship between a yoga instructor and a retreat operator is a collaboration. Accordingly, and as with most collaborations, a written agreement between the parties is advisable.
Before entering into any agreement, however, it is important for the instructor to determine both the financial and professional ability of the operator to actually provide the services it promises. Furthermore, the extent and nature of claims against the operator, if any, should be carefully researched and considered.
Once these and any other yoga business
issues have been satisfactorily addressed, the parties should memorialize their agreement. In moving the relationship forward, the retreat operator often presents its standard agreement for the instructor to execute. This form of agreement should serve as a starting point for discussions between the parties. However, whether with respect to these forms or a new agreement prepared by the parties, the concerns of the instructor are unique and require special attention.
In this regard, the agreement should clearly spell out each party’s responsibilities both before and during the retreat. The amount and means of determining the instructor’s compensation should also be clearly set forth, as well as exactly when the instructor is to receive such compensation.
Equally important, the agreement should specifically address the matter of liability
in the event of any problems with respect to the retreat. For example, who is responsible if a student is injured at the retreat while taking a yoga class or enjoying some other offered activity? What happens if prior to the departure date, the retreat operator cancels the retreat and fails to refund to the participants their monies? Because the retreat operator is controlling virtually all aspects of the retreat and is generally receiving a greater financial benefit from the retreat than the instructor, it is arguable that the operator should bear the risk of all liability (provided, of course, that the instructor performs his or her responsibilities under the agreement). However, unless this issue of liability is addressed correctly in the agreement, the instructor could find himself or herself legally obligated to make payment to an injured or otherwise damaged student, whether or not the instructor had anything to do with the incident leading to the injury or damage.
In addressing this matter of liability, the threshold issue is how the relationship between the instructor and the operator is structured. As a partnership? Joint venture? Employer/employee? Each of these relationships have significantly different legal ramifications when considering liability.
In a “partnership” or “joint venture” (which, by the way, is merely another name for a partnership), both partners are “jointly and severally” liable to anyone who is damaged by the partnership. This means that each partner is personally liable for payment of 100% of the amount of any claim. Moreover, the claimant has the legal right to sue either or both partners, personally, for some or the entire amount of the claim. (One partner may have a claim against the other to recover some or all of this expense. However, liability between partners is a separate consideration from partnership and partner liability to third parties.)
Therefore, unless the instructor is willing to accept this potential liability, it is generally most prudent for the instructor to be hired as an employee of the operator, or alternatively, as a consultant. This structure generally insulates the instructor from liability should the operator fail to perform its obligations, as well as protecting the instructor from claims resulting from his or her own ordinary negligence. (Of course, this structure does not insulate an instructor if he or she does anything outside of the scope of his or her “employment.”)
To further protect the instructor from liability, the agreement should also include an “indemnification” of the instructor by the operator. In essence, this clause is a promise by the operator to pay the costs and expenses of defending any lawsuit in which the instructor is named as a defendant and any judgements that might be rendered against the instructor.
However, even if the relationship is contractually structured such that the operator possesses the financial risk, this does not preclude an instructor from being sued by a student or vendor or provide compensation to the injured party. As additional protection, therefore, it is critical that the operator carry various kinds of insurance, including general liability insurance and errors and omissions coverage (also known as “malpractice” insurance). Moreover, the operator should be contractually required to name the instructor as insured on the coverage.
Finally, reviewing the marketing materials and other documents provided by the operator to the participants in the retreat is important. Perhaps the most critical document to be reviewed is the release to be signed by each participant. This document should specifically name and release the instructor and should be drafted by an attorney to ensure its enforceability. In addition, the instructor should confirm that the marketing materials both reflect the retreat as conceptualized by the instructor and operator and contain only representations by the operator that can be honored.
The decision to address these issues at the onset of the relationship and transfer the agreement to writing is a commitment to both open communication and the success of the retreat. In the best of all worlds, the dialogue itself will serve to choreograph the collaboration. In this same perfect world, the agreement will remain in a drawer or lawyer’s file, never to be seen or heard from again.
This article is intended to present an overview. Readers should always consult with legal
counsel regarding their particular legal issues.