BY G. A. FINCH
Getting Booted for Behaving Badly
I grew up in Southern California and it was commonplace to hear about the lives and sometimes scandals of screen stars and entertainers, but I had never heard of “morals clauses.” My first year contracts course at the University of Michigan Law School did not cover this concept, so I was unfamiliar with this legal terminology. I was a newly minted young lawyer when the term first entered my consciousness in 1984 because the reigning Miss America, Vanessa Williams, became the subject of notoriety arising from Penthouse magazine publishing nude photos of her. Using a morals clause in its standard agreement with contestants, the Miss America Pageant took her crown away because of these nude photos. It was a big deal then; it probably would not even raise an eyebrow now.
Although, it is one of my oldest blog posts, I get more hits and reads of my post “TERMINATION FOR CAUSE: MORAL TURPITUDE,” which is a closely related concept used in employment contracts for executives and professionals. Anything having to do with “morals” is always of interest to people, especially when it affects their compensation.
Protecting Organization’s Brand
Morals clauses are more commonly used with entertainers and athletes. Companies desire to use celebrities as spokespersons or endorsers of the companies’ products or services – think NBA stars or Olympic Gold Medal athletes on boxes of Wheaties cereal. Historically these clauses were directed at both criminal actions and socially disapproved behaviors reflecting the mores of the time.
As companies and organizations seek to enhance their brand, reputation, and goodwill, they also want the ability to protect these assets from damages arising from the personal
For example, National Football League Pittsburgh Steeler running back Rashard Mendenhall’s Talent Agreement with Hanesbrands, Inc. contained the following morals clause:
“If Mendenhall commits or is arrested for any crime or becomes involved in any situation or occurrence … tending to bring Mendenhall into public disrepute, contempt, scandal, or ridicule, or tending to shock, insult or offend the majority of the consuming public or any protected class or group thereof, then we shall have the right to immediately terminate this Agreement. HBI’s decision on all matters arising under this Section … shall be conclusive.”
Because of certain tweets by Mr. Mendenhall on Twitter concerning the death of Osama bin Laden, Hanesbrands, Inc. invoked the morals clause and terminated its Talent Agreement with Mendenhall who then filed a breach of contract suit.
A recent consultant contract with which I was involved had the following clause:
“The Company may terminate this Agreement without notice if Contractor is deemed to have engaged in misconduct, unethical behavior, or actions that disrupt or are inappropriate in the workplace.”
The consultant would not have gotten the contract without agreeing to this clause.
A CEO employment contract had the following for-cause termination language:
“Any actions taken by Employee which in the sole opinion of the Company’s Board of Directors materially adversely affects the business, goodwill or reputation of the Company or its customers.”
The CEO in this instance was able to negotiate away this broad, absolute language.
Personal Behavior and Private Actions
What we see here is conflict between the right to engage in personal behavior and the right of the employer to protect its brand and reputation.
If one is the attorney for the employer, then one would want to expand the scope of these clauses to give the organizational client complete flexibility to control any potential or actual damages to its brand or to control any future direction of the brand.
If one is the attorney for the employee, consultant, or celebrity pitch person/endorser, then one would want to carve out as much right to personal action and privacy as possible and have more specificity of actionable behavior. The definition and application of morality can be vague, subjective and arbitrary.
If one takes the King Solomon approach, then where there is an instance in which reasonable people could disagree as to the degree or appropriateness of the purported transgression, as determined by an arbitrator or mediator, then some liquidated sum payment to terminate the talent or employment agreement is probably the way to go.
Parties are prudent to spend ample time negotiating and crafting termination provisions as well as the morals clause subsections of those provisions in particular.