Contract Concerns

What We Preach

Your students have come to you with a question. They’ve been asked by a musical employer to sign a contract to perform at an event on a date some two months in the future. The contract states in part:

• “You will show up and fulfill whatever schedule I ask of you that day.

• “If you don’t show up—for any reason less than a hospital stay—you will pay me a penalty in the amount of this contracted day’s salary, plus an additional $300.

• “Sign here.”

Would you recommend to your students that they sign that performance contract? This would be a contract that obligates your students to show up at any assigned hour to be announced for that day, ending at any yet-unknown assigned hour of that day, to perform as many hours as to be dictated by that employer, no matter how long that day becomes. And if your students for any reason other than near-mortal injury do not show, they will owe the employer a fine equal to the full offered salary, plus $300.

Would you recommend to your students that they sign that contract?

Perhaps you consider yourself more a teacher-trainer. So what if your students came to you and showed you a similar teaching contract they’d been asked to sign? It requires the same terms: show up at any assigned hour, end at any assigned hour, teach as many hours as to be dictated later by that employer, no matter how long. And if your students for any reason other than near-mortal injury do not show, they will owe the employer a fine equal to that day’s salary, plus $300.

Would you recommend to your students that they sign that teaching contract?

I have asked this question of dozens of Virginia educators in recent years and have yet to find a single one who would recommend that their students sign such contracts. Among the many objections stated are the following:

• What protection does the student have against receiving an excessive, impractical schedule that not only wears on them but negatively impacts their requested services performing for or instructing others?

• Why is the employer bothering to hire people for whom there is such a dismal track record and expectation that the employer must threaten the employees with a fine even greater than the fee offered for their services? Aren’t more reliable hires available?

• If said fine must be retained, then the contract is completely one-sided. The students are keeping their schedules for the contracted day open for two months, likely declining other work later offered to them for the same period. What is the penalty to the employer if s/he cancels the event at the last minute after your students have repeatedly declined other work? Shouldn’t both parties share the same level of responsibility so that the students receive some level of compensation for holding their calendars open all that while?

What We Practice

Yet despite the above concerns, the above terms are indeed what VMEA and VBDOA require within their contracts for clinicians, with blanket obligations and fines amounting to the full contracted fee plus $200-$350. As an example, the most recent VMEA Adjudication Contract I’ve been offered this year states in part the following:

• The adjudicator “agrees to adhere to the host’s schedule”—a schedule not yet announced.

• The “Adjudicator’s Honorarium” is $200.

• “...The adjudicator hereby agrees that in the event of a breach of this agreement on his/her part he/she will pay the festival host the sum of the proposed honorarium plus $200.00 within 10 business days after such breach, as liquidated damages....”

• The “adjudicator may cancel this agreement under circumstances which are beyond his/her control, such as hospitalization/physical disability, serious illness or death in the immediate family, train, or plane cancellation/accident.”

• The “host may cancel this agreement under circumstances which are beyond his/her control, such as fire, severe weather. Flood war. Riot, labor dispute or epidemic at location of festival.”
  
  
• “In the event of cancellation of this agreement, the party so canceling shall notify the other paryt [sic] at the earliest possible date prior to the festival. Proper cancellation by mutual agreement relieves the other party of all obligations.”

I will not sign such a contract, nor as an educator would I recommend my students or colleagues do so if presented similarly. It is a one-sided document that presents not only an undue but imbalanced burden upon the adjudicator, and I encourage my VMEA/VBDOA colleagues to revise it immediately.

Basis

The last time I signed such a contract was some 15 years ago for a festival in another state. Presented some two months prior to the festival, the document obligated me to fulfill whatever adjudication schedule the host provided me.

The week of the festival I received in the mail the announced schedule. I was to arrive for a 6:30 a.m. judges’ meeting and begin hearing bands at 7 a.m. My adjudications would continue with a different band every half hour until the day was to conclude at 7:30 p.m., some 25 bands later. Lunch would be a sandwich served at my judges’ desk, to be consumed while I continued to record and write comments during performances.

I found the scheduling of that event inappropriate—not only for the adjudicators but for the participating bands. I am dedicated to educational goals and believe very few musicians would state that their discerning ears are as fresh, welcoming, and observant to detail after 10 to 12 hours of intense and non-stop concert listening and adjudicating. Would yours be? Even a half hour away from the music would do wonders.

The typical reaction of a VMEA/VBDOA host, when hearing my concern about the contract, is an expected one: “I would never obligate you to such a schedule.” Yet this is exactly what the contract does: obligates the adjudicator to an unannounced schedule. And because I had signed said contract 15 years ago, I was legally obligated to adjudicate 25 bands that day. Is that fair to all participating? You be the judge—literally.

Natural Acts

Did you notice in the above terms regarding accidents the complete absence of any reference to the potential for a car accident? “Train” and “plane” are covered but not the accident that would most commonly be associated with a Virginia adjudicator not arriving at the appointed place and time. The natural reaction of a VMEA/VBDOA host when I’ve raised this issue has been: “Of course I would not hold you to a fine if you had a car accident.” Then why is it not in the contract? It is a contract. Leaving the deciding criteria to “such as...” can be interpreted very differently by different employers.

Reputation

I understand that a contract might indeed be an agreement between two parties who do not trust each other. However, with its language, VMEA/VBDOA aggressively (and in my view unnecessarily) emphasizes that distrust. I have hired hundreds of clinicians, but I would not consider hiring one whom I believed I had to threaten with a fine of salary plus hundreds of dollars if s/he did not show up. First, I believe it would reflect poorly on me: that in my research I had not been able to find a clinician whose reputation I could trust more thoroughly than this.

Second, it is not uncommon for me to have to arrange for and pay a substitute to teach classes that I might miss for my choosing to adjudicate a festival. That substitute in turn has to keep his/her schedule clear to teach my class. I am certainly not the only clinician around to whom this circumstance might apply. So if the VMEA/VBDOA festival happens to cancel, I’m not only out the fee, I actually may lose money, since I may still owe my substitute some fee for the jobs s/he has turned down in the interim. So why is it that the VMEA/VBDOA contract offers no funds for the clinician if the festival folds?

I doubt that anyone adjudicates a VMEA/VBDOA Festival for the money: we do it primarily as a service to our profession and its students. So why should anyone sign a contract that obligates them to pay out a $400-$550 penalty if some extenuating circumstance forces them to miss the event?

I have delivered adjudications, workshops, and performances across the U.S. and in a number of foreign countries over the past 20-plus years and have encountered such adversarial contractual language only once before: that single contract 15 years ago. I can travel to Canada, Australia, Europe, or South Africa and not be handed such a contract. Yet Virginia Music Education has had this festival reputation for years. (Note that some other states do have such a confrontational contract; but in actuality, some hosts don’t present them to the clinicians, as those particular hosts view the documents as excessive. Or they allow me to delete these objectionable portions of the contract before I sign it.)

Is this really the face Virginians wish to present to those entrusted with the festival education of our students? Why are we hiring clinicians we do not even trust to show up?

Music Business

Said my most recent potential VMEA Festival host mere weeks ago, “I am sure that if you are a member of VMEA that can express your disbelief in such a contract at next year’s VMEA Conference. Having been to your performances and clinics at the VMEA Conference I am sure that they would welcome your input on the said contracts. However this is the structure of the governing body for today.” I am pleased to report that I have shared my view informally with a variety of VMEA representatives over the years, and I can think of no better way to raise the profile of the issue than to bring the matter to the attention of all VMEA members via this publication.

I regularly caution my students against signing contracts that require a wide, vague sphere of obligations (such as “show up and fulfill whatever schedule I ask of you that day”) or penalties not equally applicable to both parties. I would caution my music-education colleagues the same.

As a decades-long member of MENC, my intent is not to gripe; it is to shed light on a document that many VMEA members have never seen. I hope that I have offered you a constructive viewpoint on this matter. I ask that VMEA/VBDOA re-examine closely the letter and spirit of its adjudicator contracts and consider a thorough revision more befitting the fine Commonwealth of Virginia.

After all, if we are going to offer clinicians a fee called an “honorarium”—emphasis on honor—then we should keep that positive spirit of education in mind when presenting the contracts to the adjudicators we supposedly respect enough to entrust with the care of our students. If instead we prefer to continue to threaten those clinicians with a fine double that honorarium, then perhaps we should find another noun to describe this fee.

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Antonio J. García is a Professor Emeritus and former Director of Jazz Studies at Virginia Commonwealth University, where he directed the Jazz Orchestra I; instructed Applied Jazz Trombone, Small Jazz Ensemble, Jazz Pedagogy, Music Industry, and various jazz courses; founded a B.A. Music Business Emphasis (for which he initially served as Coordinator); and directed the Greater Richmond High School Jazz Band. An alumnus of the Eastman School of Music and of Loyola University of the South, he has received commissions for jazz, symphonic, chamber, film, and solo works—instrumental and vocal—including grants from Meet The Composer, The Commission Project, The Thelonious Monk Institute, and regional arts councils. His music has aired internationally and has been performed by such artists as Sheila Jordan, Arturo Sandoval, Jim Pugh, Denis DiBlasio, James Moody, and Nick Brignola. Composition/arrangement honors include IAJE (jazz band), ASCAP (orchestral), and Billboard Magazine (pop songwriting). His works have been published by Kjos Music, Hal Leonard, Kendor Music, Doug Beach Music, ejazzlines, Walrus, UNC Jazz Press, Three-Two Music Publications, Potenza Music, and his own garciamusic.com, with five recorded on CDs by Rob Parton’s JazzTech Big Band (Sea Breeze and ROPA JAZZ). His scores for independent films have screened across the U.S. and in Italy, Macedonia, Uganda, Australia, Colombia, India, Germany, Brazil, Hong Kong, Mexico, Israel, Taiwan, and the United Kingdom. He has fundraised $5.5 million in external gift pledges for the VCU Jazz Program, with hundreds of thousands of dollars already in hand.

A Bach/Selmer trombone clinician, Mr. García serves as the jazz clinician for The Conn-Selmer Institute. He has freelanced as trombonist, bass trombonist, or pianist with over 70 nationally renowned artists, including Ella Fitzgerald, George Shearing, Mel Tormé, Doc Severinsen, Louie Bellson, Dave Brubeck, and Phil Collins—and has performed at the Montreux, Nice, North Sea, Pori (Finland), New Orleans, and Chicago Jazz Festivals. He has produced recordings or broadcasts of such artists as Wynton Marsalis, Jim Pugh, Dave Taylor, Susannah McCorkle, Sir Roland Hanna, and the JazzTech Big Band and is the bass trombonist on Phil Collins’ CD “A Hot Night in Paris” (Atlantic) and DVD “Phil Collins: Finally...The First Farewell Tour” (Warner Music). An avid scat-singer, he has performed vocally with jazz bands, jazz choirs, and computer-generated sounds. He is also a member of the National Academy of Recording Arts & Sciences (NARAS). A New Orleans native, he also performed there with such local artists as Pete Fountain, Ronnie Kole, Irma Thomas, and Al Hirt.

Mr. García is a Research Faculty member at The University of KwaZulu-Natal (Durban, South Africa) and the Associate Jazz Editor of the International Trombone Association Journal. He has served as a Network Expert (for Improvisation Materials), President’s Advisory Council member, and Editorial Advisory Board member for the Jazz Education Network . His newest book, Jazz Improvisation: Practical Approaches to Grading (Meredith Music), explores avenues for creating structures that correspond to course objectives. His book Cutting the Changes: Jazz Improvisation via Key Centers (Kjos Music) offers musicians of all ages the opportunity to improvise over standard tunes using just their major scales. He is Co-Editor and Contributing Author of Teaching Jazz: A Course of Study (published by NAfME), authored a chapter within Rehearsing The Jazz Band and The Jazzer’s Cookbook (published by Meredith Music), and contributed to Peter Erskine and Dave Black’s The Musician's Lifeline (Alfred). Within the International Association for Jazz Education he served as Editor of the Jazz Education Journal, President of IAJE-IL, International Co-Chair for Curriculum and for Vocal/Instrumental Integration, and Chicago Host Coordinator for the 1997 Conference. He served on the Illinois Coalition for Music Education coordinating committee, worked with the Illinois and Chicago Public Schools to develop standards for multi-cultural music education, and received a curricular grant from the Council for Basic Education. He has also served as Director of IMEA’s All-State Jazz Choir and Combo and of similar ensembles outside of Illinois. He is the only individual to have directed all three genres of Illinois All-State jazz ensembles—combo, vocal jazz choir, and big band—and is the recipient of the Illinois Music Educators Association’s 2001 Distinguished Service Award.

Regarding Jazz Improvisation: Practical Approaches to Grading, Darius Brubeck says, "How one grades turns out to be a contentious philosophical problem with a surprisingly wide spectrum of responses. García has produced a lucidly written, probing, analytical, and ultimately practical resource for professional jazz educators, replete with valuable ideas, advice, and copious references." Jamey Aebersold offers, "This book should be mandatory reading for all graduating music ed students." Janis Stockhouse states, "Groundbreaking. The comprehensive amount of material García has gathered from leaders in jazz education is impressive in itself. Plus, the veteran educator then presents his own synthesis of the material into a method of teaching and evaluating jazz improvisation that is fresh, practical, and inspiring!" And Dr. Ron McCurdy suggests, "This method will aid in the quality of teaching and learning of jazz improvisation worldwide."

About Cutting the Changes, saxophonist David Liebman states, “This book is perfect for the beginning to intermediate improviser who may be daunted by the multitude of chord changes found in most standard material. Here is a path through the technical chord-change jungle.” Says vocalist Sunny Wilkinson, “The concept is simple, the explanation detailed, the rewards immediate. It’s very singer-friendly.” Adds jazz-education legend Jamey Aebersold, “Tony’s wealth of jazz knowledge allows you to understand and apply his concepts without having to know a lot of theory and harmony. Cutting the Changes allows music educators to present jazz improvisation to many students who would normally be scared of trying.”

Of his jazz curricular work, Standard of Excellence states: “Antonio García has developed a series of Scope and Sequence of Instruction charts to provide a structure that will ensure academic integrity in jazz education.” Wynton Marsalis emphasizes: “Eight key categories meet the challenge of teaching what is historically an oral and aural tradition. All are important ingredients in the recipe.” The Chicago Tribune has highlighted García’s “splendid solos...virtuosity and musicianship...ingenious scoring...shrewd arrangements...exotic orchestral colors, witty riffs, and gloriously uninhibited splashes of dissonance...translucent textures and elegant voicing” and cited him as “a nationally noted jazz artist/educator...one of the most prominent young music educators in the country.” Down Beat has recognized his “knowing solo work on trombone” and “first-class writing of special interest.” The Jazz Report has written about the “talented trombonist,” and Cadence noted his “hauntingly lovely” composing as well as CD production “recommended without any qualifications whatsoever.” Phil Collins has said simply, “He can be in my band whenever he wants.” García is also the subject of an extensive interview within Bonanza: Insights and Wisdom from Professional Jazz Trombonists (Advance Music), profiled along with such artists as Bill Watrous, Mike Davis, Bill Reichenbach, Wayne Andre, John Fedchock, Conrad Herwig, Steve Turre, Jim Pugh, and Ed Neumeister.

The Secretary of the Board of The Midwest Clinic and a past Advisory Board member of the Brubeck Institute, Mr. García has adjudicated festivals and presented clinics in Canada, Europe, Australia, The Middle East, and South Africa, including creativity workshops for Motorola, Inc.’s international management executives. The partnership he created between VCU Jazz and the Centre for Jazz and Popular Music at the University of KwaZulu-Natal merited the 2013 VCU Community Engagement Award for Research. He has served as adjudicator for the International Trombone Association’s Frank Rosolino, Carl Fontana, and Rath Jazz Trombone Scholarship competitions and the Kai Winding Jazz Trombone Ensemble competition and has been asked to serve on Arts Midwest’s “Midwest Jazz Masters” panel and the Virginia Commission for the Arts “Artist Fellowship in Music Composition” panel. He was published within the inaugural edition of Jazz Education in Research and Practice and has been repeatedly published in Down Beat; JAZZed; Jazz Improv; Music, Inc.; The International Musician; The Instrumentalist; and the journals of NAfME, IAJE, ITA, American Orff-Schulwerk Association, Percussive Arts Society, Arts Midwest, Illinois Music Educators Association, and Illinois Association of School Boards. Previous to VCU, he served as Associate Professor and Coordinator of Combos at Northwestern University, where he taught jazz and integrated arts, was Jazz Coordinator for the National High School Music Institute, and for four years directed the Vocal Jazz Ensemble. Formerly the Coordinator of Jazz Studies at Northern Illinois University, he was selected by students and faculty there as the recipient of a 1992 “Excellence in Undergraduate Teaching” award and nominated as its candidate for 1992 CASE “U.S. Professor of the Year” (one of 434 nationwide). He is recipient of the VCU School of the Arts’ 2015 Faculty Award of Excellence for his teaching, research, and service and in 2021 was inducted into the Conn-Selmer Institute Hall of Fame. Visit his web site at <www.garciamusic.com>.