Is ACTRA off-side or did Labatt side step its obligations under the National Commercial Agreement?
The Alliance of Canadian Cinema Television and Radio Artists (“ACTRA”) claims that Labatt breached its obligations under the National Commercial Agreement (“NCA”) by hiring non-union actors and paying non-union wages in its “Flash Fans” commercial that recently aired during the Canadian broadcast of the Super Bowl. ACTRA negotiates the terms of the NCA with the Institute of Communication Agencies and the Association of Canadian Advertisers, of which Labatt is reportedly a member.
The “Flash Fans” commercial features hundreds of fans (reports suggest at least 600 fans were involved) surprising two unsuspecting Ontario recreational hockey league teams during a recent pick up game just outside Toronto. At one point during the game, the fans rush into the arena screaming and cheering alongside mascots and cheerleaders; at the same time live announcers come on calling the plays and a hidden jumbotron along with a plethora of Budweiser advertising is revealed. The flash fans bring with them the energy usually reserved for professional league play.
The commercial was created for Budweiser Canada by Labatt’s New York agency Anomaly, a part of MDC Partners Inc. network of agencies. As an American advertising agency Anomaly is not a signatory to the NCA. Generally speaking, ACTRA does not have jurisdiction over non-signatory agencies and advertisers, who are free to create non-union productions, hire non-union talent and negotiate talent fees on an individual basis outside the obligations set forth in the NCA or any other collective performers agreement. Like agencies and advertisers, once they become members of the union, ACTRA talent is prohibited from participating in non-union productions. There is, however, no prohibition on non-union talent being engaged in a non-union production.
The issue in this case lies in whether or not Labatt is a signatory advertiser to the NCA. The allegations by ACTRA rely on this being the case. In an ACTRA release issued Feb. 10, Heather Allin, ACTRA Toronto president said “[i]t’s an embarrassing day for Labatt when they’re caught exploiting everyday folks in their multi-million dollar television ads. We are shocked that Labatt, with whom we have a long-standing business relationship, would undermine their agreement and hire workers for much less than industry-standard pay.” Likely complicating the situation are reports (by ACTRA) that Anomaly has produced a number of union-compliant commercials for Labatt in Canada in the past year.
Had the commercial been produced as a union production, Labatt would have been obligated to pay each performer in the spot, including the hockey players, ACTRA union wages. According to a Feb. 14 article in the National Post, ACTRA claims the hockey players are owed “at least $3,215.15 each, with an extra $537.85 given to players who appeared in short follow-up interviews”. Similarly, while members of the crowd reportedly would have likely received a cash rate of $11 per hour under the agreement, prominent crowd members may have qualified for a “principal performer” fee of $3,753. Instead, members of the flash mob were reportedly paid $150 a piece and the hockey players were rewarded with a private Super Bowl party.
Labatt has responded to the allegations by calling the commercial “a spontaneous event rather than a traditional, scripted television advertisement.” They draw attention to the fact that the visceral responses of the real life players would not have been possible or may not have been as authentic under scripted circumstances. Anomaly’s approach in producing the ‘event’ has proven successful with over 3.5 million views on YouTube. As to whether or not a similar campaign would be as successful using actors, it is difficult to tell. One would have to recreate the entire event, which as we know would cost the ‘King of Beers’ a small fortune.
