The Law: Using Third Parties to Deliver Outdoor Adventure Education in your School

With responsibility for developing all sports and with funding linked to achieving higher levels of participation, your school may have considered using a third party to help deliver outdoor programmes within your school.

As more and more sports engage such Partners this article will look at (1) why such arrangements may be attractive, (2) the key features of such arrangements, and (3) key issues to be considered when contracting with Partners.

1. 1.         Why Use a Partner?

The key reasons are as follows: 

• it gives you access to the experience and expertise which a number of these Partners have in creating, promoting and delivering such programmes

• where the Partner is currently or has previously worked within the sport – the Partner may even be one of your local clubs – it can give you access to potential future pupils and their personal data that you otherwise wouldn’t have

• the Partner may have resources critical to delivering such programmes which the school may not, not least the required number of personnel

• it may ease your administrative burden by passing responsibility for the day to day management and delivery of a core function of the school to the Partner;

• you can pass to the Partner potential legal liabilities associated with delivery such as the hiring of venues and entering into agreements with participants; and

• any fees generated by the relationship may provide a steady income which may in turn be used to drive further growth and expand your reach even further by developing new services/programmes to be developed and offered by you or on your behalf.

1. 2.         The Key Features of Such Arrangements

These arrangements often have the following key features:

• they will enable a product or service owned by you to be delivered in a uniform way;

• you will grant the Partner the right to use a name and “business” model which is associated with and has been developed by you;

• you will monitor and exercise control over the Partner;

• you will provide a reasonable level of on-going assistance to the Partner; and

• depending upon the financial model, the Partner may periodically have to make payments to you.

1. 3.         Key Issues to be Considered When Contracting With Partners

 Central to the success of such arrangements is a robust agreement between you and the Partner.  Key issues which should be addressed include:

• tightly defining what aspect of the sport you wish the Partner to deliver for you (“Programmes”).  In particular, are you appointing the Partner (a) to deliver a specific type of Programme that you already provide; or (b) to deliver a new type of Programme that you have created or wish to create using your and the Partner’s expertise?  Tied to this, are you appointing the Partner on an exclusive basis or will you also be able to engage other Partners?; 

• the Programmes must be delivered in accordance with your requirements (“System”) i.e. your methodology, plans, procedures etc.  These should be set out in a manual provided to the Partner which you must have the right to update from time to time;

• the agreement should require that the manual and any other documents provided by you (and copies of the same) be returned to you by the Partner on expiry or earlier termination of the agreement;

• what intellectual property rights do you own and to what extent do you want the Partner to use such rights for the Programmes?  Does the Programme have its own identity/brand or has one been created? Do trademarks need to be registered for the Programme’s name and logo?  In any event, you should retain ownership of these as between you and the Partner; 

• promoting and advertising the Programmes.  This may be the responsibility of both you and the Partner as it is in both of your interests that the arrangement is successful;

• the Programmes must be provided by the Partner and the Partner is not entitled to subcontract any part of the delivery (except with your prior approval);

• the Partner must have and maintain sufficient resources for the Programmes including appropriate skilled and qualified staff.  However, it is often standard for you to provide a Partner with initial and regular on-going training;

• the Partner must comply will all applicable laws and ensure that its staff receive all appropriate training.  This is particularly important in the area of safeguarding;

• how you structure the payment for granting the Partner the right to deliver the Programmes.  You may decide to charge the Partner an initial fee with a fixed annual fee to be paid for each additional year of the agreement or you may require a share of all profits generated by the Partner during the agreement.  Alternatively, you may actually choose to pay the Partner a fee for delivering the Programmes on your behalf;

• in involving third parties you will inevitably divulge substantial knowhow and information.  The Partner should be prohibited from using this for its own purposes.  You may also wish to consider restricting the Partner from being involved in competing Programmes, both during and after the agreement though such restrictions must be reasonable to be enforceable; and

• you will clearly want to monitor the Partner’s delivery.  The Partner should be required to generally report to you on an on-going basis, should be obliged to report complaints to you and to take all action required by you to remedy such complaints and, ultimately, you should have a right to terminate the agreement if any aspect of the Programmes are not being delivered in accordance with the System.