Affiliate Union

Discussion in 'General Casino Affiliate Area' started by ThePOGG, Mar 5, 2018.

  1.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    As promised, I'm now distributing a proposal for how I think an affiliate union of sorts may work. There are a couple of points I would stress before I go any further:

    i) This structure is not intended to appeal to everyone. In fact for this structure to work too many participants would be just as detrimental as too few. The concept behind this would be to gather 50-100 like-minded affiliates NOT to get thousands of affiliates to agree.

    ii) With the best will in the world I simply do not have time to debate whether or not people like the idea of a union. We have a major new tool launching imminently and with the UKGC's new advertising rules coming into place I'm buried helping operators adjust their promotions and ensuring our own content is compliant. I would ask anyone considering responding to ensure that if you're highlighting what you see as flaws in the system, to put forward constructive feedback in the form of potential work arounds. Let's try and keep this positive or let it fail through lack of interest if it's going to.

    iii) I have spoken to a number of people I have respect for before posting this. The response has encompassed the full spectrum, from those who stopped the conversation at sentence one because a union could never work to those who thought it sounded like a very workable idea with views in between as well. This post is NOT targeted at everyone. It's targeted at those who read through the idea and come away thinking 'this seems like a good idea'. If you don't have that warm fuzzy feeling at the end of this post then this project isn't for you. If not enough people think it's a good idea, I'm fine with that. I'd rather move on than try to convince people who are lukewarm of the merits as they are unlikely to ever be fully sold and if you don't buy-in intellectually the system breaks.




    Proposal

    There is one main issue that confronts affiliates time and time again when dealing with programs that simply decide to change the terms of their agreements - many affiliates are simply not in a financial position to attempt to challenge via the legal system actions taken by an affiliate program that are to their detriment and may not be legally sound. Court action can be very expensive and while there are some affiliates who have deep enough pockets to be comfortable dealing with the expenses themselves, most of us are not. Affiliate programs know this and selectively enforce detrimental changes, allowing the larger affiliates with more clout to do as they wish while ruthlessly altering the contracts of the smaller affiliates who they feel cannot viably pursue them.

    In my opinion smaller affiliates working together could address this issue. There are two fundamental barriers that have prevented this from ever happening:

    i) Historic efforts to put together a union have fallen at the first hurdle. In each case the union has suggested that 'we all agree not to work with certain programs'. Affiliates have vastly differing standards in what they consider a 'good' or 'bad' program. Even between sites with significant synergy there will be programs that differ in their standing. Simply put, most affiliates cannot allow someone else to dictate who they work with as this can have serious financial implications for the affiliate's business. Even if all members were to agree to this in principal, policing it would be effectively unmanageable.

    ii) Affiliate Unions are difficult to organise primarily because many affiliates would be put off by the idea of having to pay upfront fees to a body administered by someone else. Who should be trusted with this role? What are reasonable fees? How would it be decided what the fees are spent on. Affiliates tend to be entrepreneurial individuals that do not like being told what they can and can't do. The idea of signing up to a group where someone else gets to make the decisions does not appeal to many of us.

    Both of these issues are actually closely related - why would I hand over control of a significant area of MY business to someone who may not have our best interest at heart?


    Here's what I would suggest to address these issues.



    Basic outlines of the structure:

    - Each member would be assigned one vote.

    - At no point will the union dictate which programs any member can work with.

    - Any member can approach the union to request a review of an issue. The union would then prepare an overview of the key facts of the case, including what the affiliate feels is the problem and in which jurisdictions legal action could potentially be pursued. The overview would be distributed to all members. There are then multiple options, but each would require a vote. Before action would be taken, a majority of 55% of the membership would have to be in favour of it.

    Potential actions:

    i) The union membership would have a vote on issuing a public statement/press release asserting the position of the membership with regard to the actions of the program. Much like you see with petitions published in news papers, if 50-100 affiliates all publicly condemned the actions of the program it would create a lot of negative press and pressure on the program. Those in favour of action would be asked to publish a statement on their respective sites. If managed correctly there is the potential to create a 'link wheel' like structure between the published articles to ensure that the articles rank well and even give some SEO benefits to the participating members.

    If this type of action was pursued pre-publication legal review of any statement would have to be engaged. Expectations of cost for this would not be likely to exceed £500 (far less based on my own prior experience).

    ii) The union membership would be asked to vote on whether to move forward with taking legal advice on any legal action that could potentially be taken.

    If the majority (55%) are in favour of taking legal advice the union then looks to engage a legal firm in the relevant jurisdiction and undertake a review of the case. The cost for this would be split equally amongst all members. This means ALL members, not just those in favour. While it would be fine for an affiliate to decline to publish the press statement if it was critical of a program they worked closely with, funding any legal action has to be shared equally to avoid free rolling members who look to get the union membership to fund their actions, but opt-out any time another member would like the union to consider action.

    To this end each affiliate who wanted to join the union would have to sign a legally binding contract on behalf of their business when they join agreeing to fund their part of any legal action the union's membership decides to take.

    If the vote is to take legal advice on a case, once legal advice has been taken, the advice is then distributed to all members who are then asked again to vote on whether or not to pursue further action. Again if the majority are in favour of taking further action the costs would be split equally amongst all members.

    At each point where new information becomes available a new vote on any potential action has to be taken to ensure that the majority (55%) are still committed to moving forward.

    - To ensure that votes are conducted in a fair and transparent manner all members would be issued with a four digit 'membership number' that would be confidential and only known to them and the vote coordinator. At the conclusion of any vote a spreadsheet of all membership numbers alongside the direction of their vote would be distributed to all members. In this manner each member can confirm that their vote was counted correctly while no member would be able to identify another member's voting direction.



    ---------------------------------------------

    To me, the advantages of this system are clear – with 100 members the potential to deliver a widely distributed press release that would turn up regularly in the rankings highlighting the issues is a significant disincentive to any program considering making unfair changes in the first instance.

    If a case was serious enough to warrant taking legal action (imo Affiliate Edge would have been worth at least engaging legal advice for), even if case cost an outrageous amount of £200k, every member would only be liable to pay £2k. The larger the number of participants the smaller the individual contributions would be.

    Yes it is likely that we would all end up contributing to cases that don’t impact us from time to time, but this approach would make members of the union a far more dangerous target for programs to implement arbitrary contract change tactics against. Most cases aren’t going to come to anywhere near £100k. If Dave had taken legal representation and lost in this manner, with 100 members it’s unlikely the bill would have come to £300 each and I’m sure most of us would have thought that small price to pay to challenge this type of blanket ‘we can change anything at any time’ term. The upside if the case had been won would have been huge for all affiliates.

    There will unquestionably be affiliates who decide not to honour their commitment when a call is issued to contribute to legal fees. The union can take a separate vote on whether to pursue such breaches of contract via the court system or simply revoke the membership of said affiliates.

    I’d also suggest that it might be worthwhile to have a small monthly membership fee (€5-10) that could be collected as a ‘war chest’ in case the union approves action on an issue. In this manner there would already be a bank to draw down on before anyone is asked for extra. It also means that all members have some degree of stake in the enterprise meaning active participation is more likely.

    And this is the point where I’d throw the idea open for discussion – who can see problems? I would like to keep this positive so if you’re going to criticise I’d appreciate it if you could suggest potential solutions you see.

    If you are interested in participating I would ask you to email me at webmaster@thepogg.com. If, by the end of March, we have 50+ affiliates all interested in participating then I'll contact all interested parties about moving forward. If there are less than 50 I'd suggest we're too small to be effective.

    If you do like this idea, please spread the word to other affiliates. I have limited reach with affiliates at the present time and the more affiliates who read this the greater the chance of finding enough affiliates that think it's a good idea.

    TP
     
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  2.  
    bettingappguide

    bettingappguide Active Member

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    I think it sounds like a great idea and would definitely like to be part.
     
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  3.  
    Biti

    Biti Affiliate Guard Dog Member

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    I think this way it's effective and pragmatic.

    The big 'no go' for many affiliates to be dictated is avoided, but also I can vote "against" a case if for example somebody decides next week to work with a known rogue program.

    What I think is good, is to have some maximum "liability" in the contract. In theory the maximum cost of a legal proceed is endless, while everyone's budget for legal actions is not.
     
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    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    Hi Biti,

    The problem with including a maximum liability is it leaves the party pursuing the case high and dry. As you rightly point out legal fees can be big, especially in the situation where a case is lost and you end up having to pay the other parties fees as well. If the organisation was to do as you suggest and cap it at, for example £50k, the pursuing party gets to a point where the £50k's exhausted, they're too far invested and they have to go on facing the rest of the fees themselves.

    While I'd certainly be open to imposing a liability cap if the collective felt that was the best way forward, my opinion would be that the repeated votes allows each member to assess the liability at each step of the process. You might be happy to pursue legal advice at a cost of £30/member, but when the legal advice comes back saying £500k to pursue the case (£5k/member) you may feel this is too rich and vote against going further.

    Personally I doubt we'd ever see a case costing £500k, but if we did (and assuming 100 members) ThePOGG could if we had to find £5k. In this respect system does by its very nature cater to the mid level affiliate - those not big enough to take legal action on their own but those big enough that 1% of the overall legal fees are never going to amount to something that could jeopardise their business. I don't see this as a bad thing though. While I respect small affiliates, having 100 small affiliates who see less than 100 search traffic a day wouldn't make for much clout in practical terms when it came to press releases.

    TP
     
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    AussieDave

    AussieDave 18 years & still going!

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    Frankly, nothing changes IF nothing changes. Too often these days, programs seem to follow the 'Monkey see Monkey do' attitude. Which in the case of affiliate partners, all too often translates to (smaller) affiliates being shafted.

    So I'm all for anything which could, and imho would help us, to obtain/reclaim a fair and ethical playing field.
     
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  6.  
    Biti

    Biti Affiliate Guard Dog Member

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    Thanks for your reply.

    I didn't mention a sum, but it should be certainly high enough to cover a case of £500k (£5k/member). If people want to spend max £50 a case, with all respect, but than they should not participate. A good case is worth £5k/member for sure. It's not just the judgement you get in that particular case, but it has also effect on future cases and on t&c's. I think if a case is voted, there should be some "carte blanche" up to a certain level to go on. Not vote for every £100.

    But for many reasons it's good to have a cap I think. Also if I sell for example my business, obligations I've signed have influence on the price.

    Or what if some day some very extreme (and perhaps hypothetical) leads to a sum that's a big hit for mid- or even big affliates. It's not about £5k or £10k, but if I have to pay like £100k, honestly, I would scratch behind the ears.

    The higher the price, the more likely that some members won't pay or are not able to pay, which means an even higher part for the ones that are paying.
     
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  7.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    I may be wrong but a court case running to £10mil would be highly unlikely and likely to frighten all but the biggest operators off anyway.

    Nevertheless, I take your point. If those participating want to set a cap I'd be happy enough with that. I'm sure a reasonable cap could be agreed.

    TP
     
  8.  
    Shay

    Shay Affiliate Guard Dog Member

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    Does the possibility of a share in the settlement or at the very least a recapture of expenses in the event the suit results in a positive outcome factor into any of this?
     
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    Frank

    Frank Affiliate Guard Dog Member

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    My doubt is not all affiliates will be capable financially to pay say 500, however the union is a great Idea, I think the public damage we can do all working together dominating the serps would scale way more than 200k, create a hostile environment against the rogue's where the only possible road to take is playing straight. it's not just the non payers but also the legal shavers and those inflicting ridiculous fee's under the guise of legal charges leaving affiliates with a penny off the dollar.
     
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  10.  
    KasinoKing

    KasinoKing Player turned affiliate. Staff Member

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    As one with no experience of courts and legal processes, if the "Union" take action against an operator (funded by the members) and win the case, would I be right in thinking we would be awarded costs and therefor all contributing members would be reimbursed?

    KK
     
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  11.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    My understanding of the legal system in this type of case would be that the losing party is liable to pay the winning parties legal costs, or at least a portion thereof as was demonstrated by the OCR case. That being the case my thoughts had been that costs would then be reimbursed to the union members.

    With regards to shares of settlements - I hadn't considered this. Honestly, I'd prefer that the members who had lost the funds in the first place were 'made right', but again if the collective wanted a different approach involving sharing any gains I'd be open to that.

    On this front I had envisioned a slightly different structure than individual members having their case funded by the union. With 50-100 members I had made a general assumption that at any one time more than one member is likely to be impacted by a situation big enough that there would be a 55% positive vote to take action. In that situation my thoughts were to gather together the members that had been impacted and the union would look to engage legal representation on the behalf of all of the impacted members rather than have each engage their own legal representation (at a vastly inflated cost).

    TP
     
    Last edited: Mar 6, 2018
  12.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    I couldn't agree more WP.

    I think the strength of this project lies primarily in what can be achieved in the SERPs without considering legal action. That many negative and damaging reports posted online about a brand/program would be enough to make all but the most foolhardy of programs pause for thought. The reports would have to be worded carefully - hence needing some fund for pre-publication review (I have a good lawyer set-up for this already that deals with pre-publication/libel defence for several of the UK broadsheets that we've started using on ThePOGG in the last year). But even allowing for half of the membership to opt-out of publishing a statement due to their working with a program, that still leaves a large number of posts. And this doesn't mention the benefit that with a large number of individual affiliates acting in concert it becomes far harder for the program's legal team to use bullying behaviour to try and get factually accurate content removed.

    While the legal challenge remains an option, the strength of this is in the negative press this can generate.

    I know of one big operator who last week announced that they'll be adding NCO. We've told them that we find this arbitrary change to our contract agreement unacceptable and if they go ahead with it will be moving their property to Not Recommended status and dropping links. The truth is it makes very little difference to us financially - we don't do a lot with them and we work with other programs that have NCO - but I absolutely fundamentally object on every level to programs feeling that they can renege on contracts at will and that affiliates have no choice but to accept it. How much more effective would our statement have been if 30, 40, 50 or more affiliates all decided to publish statements about that? Many of these would be affiliates that never worked with the program. Any affiliate that felt that they had to continue working with that program or jeopardise their business could obviously opt out. All of the rest posting would still send a very strong message.

    TP
     
    Last edited: Mar 6, 2018
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    Webzcas

    Webzcas Affiliate Guard Dog Member

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    Quite. Even the Ferster *%$%*& I doubt spent that much wrestling control of the Club World Group from their younger brother. With the High Court Judge Mr Justice Morgan stating that the litigation was pursued at ENORMOUS expense.
     
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    Webzcas

    Webzcas Affiliate Guard Dog Member

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    From my own recent personal experience, the losing side is liable to have to pay the costs incurred by the winning party. However, this is decided by the Judge and in most cases the amount being sought by the winning side is not awarded. It is usually 50 - 70%.
     
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    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    I also wanted to say something about this. Specifically about shaving. Shaving is very difficult to prove. Especially for any affiliate working by themselves. However, where a number of affiliates compare notes on a program issues could be identified far more quickly.

    I am not suggesting building this in as part of the union structure at this stage, but if the collective felt that it was worthwhile, were all happy to do so (or perhaps a subset were?) and we put the correct NDAs in place I know that ThePOGG would be happy to share more detailed information than we would publish to the ends of identifying programs where there may be problems.

    TP
     
  16.  
    baldidiot

    baldidiot Affiliate Guard Dog Member

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    I think this is an important point that has been potentially overlooked. If a case is lost and there is a counter suit from the defending party (or ordered to pay costs), would that have been factored in to the budget?

    Eg: If a case looks like it will cost £100k to put forward at say £1k per person and ends up losing but we get stuck paying legal costs of the other side of £200k, everyone would have to put in an extra £2k. People would need to realise this ahead of time knowing that they're putting in say £1k but potentially committing a larger sum.

    Regarding successful cases, I agree that it should go to the people who lost out in the first place. Ie: if Casino A screws over an affiliate for £10k and we sue them for that, that affiliate should get the £10k rather than everyone picking up £100.

    If damages are paid on top then those could either be distributed or put back into the reserves for the next case.

    On the whole I'm interested in seeing where this goes, but first things first though I think the idea needs to be run by a laywer to see what they say.
     
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  17.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    Absolutely. Losing has to be factored into to any cost projections at the point where the collective has take legal advice. i.e. we get legal advice about the issue and if there appears to be a potentially viable case we look to get a projection of cost. If it was done the way I wanted - which isn't necessarily the best way - I'd factor in a 50% increase to the projected cost to account for unknowns and double that total to account for the potential of losing.

    That would be what I would prefer.

    If there's a lot of calls to have this set-up run by a lawyer I'd be happy to do that, but my honest opinion would be that the vast majority of any action taken by the group is going to take the form of Press Releases rather than legal action. No-one needs legal advice to state that they 'do not agree with the actions of program X' (though I would still want pre-publication advice on what exactly we can/cannot say). Imo the legal advice would necessarily come at the point where there was an open case to be reviewed that we potentially wanted to pursue via the courts.

    TP
     
    Last edited: Mar 6, 2018
  18.  
    Biti

    Biti Affiliate Guard Dog Member

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    Sometimes the outcome is also that each party has to pay its own expenses.

    What also a big advantage of an union is, is that an union is a better position to get a fair price for your own legal expenses than when acting alone.

    My own experiences is that lawyers in the gambling nice charge quite a lot, up to $700/hour.
     
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    TheGooner

    TheGooner Affiliate Guard Dog Member

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    Of course this should be the case.

    If you socialise the costs to the "union" fund (including possible extra punative costs) - then funds "won" from a successful case should first be set aside against the direct costs of the case and then the remainder disbursed back to the "union" backers fighting fund.

    I note that the OP and a few have suggested otherwise - but the logic of an affiliate collecting a "prize" while the union pays for the costs completely escapes me. You don't get rich with commercial court cases - if you are lucky you cover your costs.

    If an affiliate doesn't like that then they are always free to fund the action directly themselves and retain all awards.
     
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  20.  
    ThePOGG

    ThePOGG Affiliate Guard Dog Member

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    Hi TheGooner,

    Again I think you've misinterpreted my intent.

    I will say before going further that I do feel focusing on financial compensation at this stage is putting the cart a long way before the horse. The funding to take legal action is a powerful disincentive to any program looking to take questionable actions, but my hope would be that in all but the most extreme cases the threat of action or the other actions the union could take would be enough to achieve the intended results.

    Anyway - yes of course the union should be reimbursed for costs. In any victorious situation, whatever proportion of costs are award by the court would be earmarked for disbursement to the membership. There would have to be rules put in place regarding how a win where less than 100% of costs were awarded was managed. However, past that, the affiliate in question would be set right before any further funds (aka in the unlikely situation where damages were awarded beyond the affiliate's initial loss and costs) are disbursed to the membership.

    This has to be the case otherwise there is no purpose for any affiliate to ever seek the union's help. If Affiliate A come to the union with a problem with Program B that has resulted in them being short £10k that they should have been paid and the union were to help them pursue this through the courts and win splitting the £10k between the membership results in Affiliate A only getting 1% of the money they were shorted back. This creates a situation where i) they're no longer being shorted by Program B, they're being shorted by the union membership and ii) the incentive for them to pursue legal action to remedy their loss is non-existent.

    There is no prize to be collected here - the affiliate had been left short in the first instance.

    So we're socialising the cost to the membership, yes. The membership should not expect to receive financial reward for this. What the membership gain from this is the knowledge that if the day comes where they need to take legal action against an operator to recover money they should have been paid, they can approach the union for help as well.

    As stated from the outset, this structure is not intended to appeal to everyone and I've no doubt many won't like it.

    TP
     
    Last edited: Mar 7, 2018

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