Duck Dynasty – What Contract Clause Did Phil Violate? The Morals Clause?

This post is not about agreeing, disagreeing, supporting, or not supporting the comments made by Duck Dynasty Patriarch Phil Robertson.  As an entertainment lawyer, this post is to raise conversations with lawyers and industry professionals on what contractually grounds give A&E the ability to terminate Phil from the Duck Dynasty show.

Phil made public statements regarding his personal beliefs that did not sit well with A&E.  While I do not have a connection to A&E or Duck Dynasty, I do have sample contractual language that may be similar to Phil’s agreement.  Interestingly enough, the language I suspect A&E used to terminate Phil is found in what we entertainment lawyers call a “Morals Clause.”  This is the clause that was used by GILLETTE and other endorsers of Tiger Woods to terminate his endorsement deals when facts about his personal life came to light.

A Morals Clause allows the studio/production company/endorser to terminate a contract when the actor or athlete commits conduct that “casts disrepute on the studio or industry.”

If the Network or Producer becomes aware that Artist has previously committed any such acts or has engaged in behavior that the Network or Producer reasonably determines brings or may bring Artist, Producer, the Network or the Network’s sponsors into widespread public disrepute, scandal or ridicule or which reflects or may reflect unfavorably upon Artist, Producer, the Network or a sponsor, then Producer shall be entitled to terminate this Agreement forthwith by giving Artist notice of termination in writing at any time after the Network or Producer acquires knowledge of such act or conduct.

Termination under the Morals Clause usually occurs when there has been an allegation of criminal or civil charges against the artist or athlete.  Or, in the case of Tiger Woods, many allegations of marital infidelity.

Does A&E have an implied covenant of good faith and fair dealing not to act arbitrarily, irrationally or unreasonably in exercising discretion to execute its termination rights under the morals clause of the contract?  At least one court held recently that invoking a Morals Clause because of a Tweet made by an athlete the brand endorsed was not enough to trigger termination.

Lawyers and industry professionals, please leave your thoughts and comments.  I may delete comments that do not add to the legal conversation.

About Tamera Bennett

Tamera Bennett, nicknamed by her clients as the IP quarterback, develops strategies to protect and leverage each client's intellectual property. She works closely with her clients to implement customized brand management programs. Her clients range from rock star to leadership coach and financial guru to custom motorcycle designer. Prepared with an undergraduate degree in Recording Industry Studies and a law degree from Texas Wesleyan University School of Law, Tamera represents clients throughout Texas and Tennessee in entertainment, trademark and copyright law related matters View all posts by Tamera Bennett

19 responses to “Duck Dynasty – What Contract Clause Did Phil Violate? The Morals Clause?

  • Tara Aaron (@tara_aaron)

    I see this less as an entertainment law issue and more of a straight-up contract issue. Most people are employees-at-will. Sometimes that’s not true of celebrities on tv shows. But I’m guessing that A&E would have reserved for itself wide discretion in choosing whether to terminate a personality on the show. What if he hadn’t said something controversial, but was just flat out difficult to work with? The studio probably protects itself from being married to difficult personalities. It will, of course, all depend on the contract, but I would bet that A&E was within its documented rights.

    • Rick Yartz

      Paraphrasing the Bible constitutes violation of a morals clause?! Oxymoron. Scottie, beam me out of here.

    • susan gate

      Title VII .. illegal to discriminate for an employees religious beliefs. AE is in the wrong. A moral clause … quoting the Bible is not immoral. A morals clause is a provision in a contract or official document that prohibits certain behavior in a person’s private life. They deal with behavior such as sexual acts and drug use. They were commonly used in the contract between actors/actresses and

  • steve winogradsky

    Rick, the key phrase is “reflects unfavorably upon the network”. Making a public statement SO predjucial to ANY group of people is something that an employer may protect themselves against. Would a statement against any religious group or ethnicity be acceptable, or just the ones you disagree with? The 1st amendment prohibition against censorship applies to the government, not private businesses. And hiding behind the “Bible” is a weak excuse for unacceptable behavior.

    • George

      Robertson is another one of those who likes to pick and choose which parts of the Bible he agrees with. Leviticus also says you should not have unkempt hair.

    • susan gate

      Obviously the viewers are not taking issue with Phil, they are supporting him and his religious views. Quoting the Bible is not prejudicial.. it is Phil’s and many others view . AE will lose money for their actions as fans will stop watching due to AE’s religious bigotry.

  • Gordon Firemark

    Morals clauses are indeed a part of most Hollywood deals, and in the reality space, they’re particularly important.

    This situation is unusual because it’s about someone expressing his beliefs…albeit in a way that offended a large segment of audience… The network has the absolute right to refuse to put someone on their channel who makes them look bad, or just holds an unpopular viewpoint.

    Should they have invoked the clause in this situation? Perhaps not. But business is,business. Sometimes controversy is actually good publicity…. But it’s a judgment call.

    Recall Charlie Sheen’s termination from Two and a Half Men… Similar situation. On-camera personalities have a great deal of power and influence in our culture. I think it’s incumbent on them to wield it carefully, so as not to undermine the business that makes it possible for them to enjoy their fame in the first place.

    If audiences are unhappy, advertisers are unhappy, and thus, the network is unhappy. Pulling the person off the air is how they protect their bottom line…

    And you can bet it was a carefully considered thing… What if his absence from the show causes it to go downhill… Lower ratings can also impact that bottom line.

    • susan gate

      A morals clause is a provision in a contract or official document that prohibits certain behavior in a person’s private life. They deal with behavior such as sexual acts and drug use. They were commonly used in the contract between actors/actresses .
      Here’s another section of a TV contract that may cause concern. Many TV stations want to make sure their employees conduct themselves lawfully and morally.

      By agreeing to this language, you are telling the station that it can fire you if you are charged with a crime, arrested or involved in a situation that puts the station in a negative light. So if you’re charged with drinking and driving, you can be fired before you ever go to trial.

      That may seem unfair until you consider the impact on the station. It has spent money putting your face on billboards all over town, only to see that same face plastered on the front page of the newspaper under the headline “Anchor Arrested.”

  • Darla J.

    Can a morals clause be found to be unconstitutional by asking one to sign away his/her rights? I.e. Freedom of speech like what is happening to Phil Robsertson.

    • Jallenh

      In the interview, when talking about the initial negotiations, one of the sons said “the three no-compromises were faith, betrayal of family members, and duck season.” If the former actually made it into the contract, then does that invalidate use of the morals clause in this situation?

    • steve winogradsky

      Freedom of speach is only protected from interference by the government, not private enterprise. “Noted constitutional expert” Sarah Palin thinks Robertson’s 1st Amendment rights were violated because he was fired for what he said but she didn’t seem to mind when a CNN commentator was fired for saying what he thought. Of course he said something against Palin so he deserved to be fired. Hypocritical, if you ask me. Pick a set if principles and apply them across the board, not just when they suit your purposes.

      • susan gate

        Title Vii of the CRAct..
        Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

        Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.).

      • susan gate

        Definitely it’s a case of discrimination based on religion.

        The case doesn’t even have to mention anything about homosexuality because Phil Robertson was quoting scripture (expressing religious beliefs) in an interview that was not associated with the business of A&E and they fired him and maligned him for it.

        Simple outline of the case:

        1. Contractor makes legal religious expression during activity not associated with and separate from Managing company.

        2. Managing company objects to such religious expression of contractor and retaliates.

        Case is clear and in favor of the contractor.

  • Darla J.

    Wouldn’t it have just been easier for A&E to give a disclaimer?
    “The opinions of the Robsertson family are their own and not necessarily those of this network.” A whole lot less drama.

  • susan gate

    Religious Discrimination

    Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

    Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

    Religious Discrimination & Work Situations

    The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

    AE violated Phil’s rights to speak his beliefs. and AE will lose money because of terminating Phil.

  • ipandentertainmentlaw

    Thank you for the great conversation. Whether you agree with Phil or A&E, I believe A&E had the contractual right to do what it did. The arguments regarding freedom of speech and freedom of religion are compelling and heartfelt, but the language in the contract Phil signed will be the final decision maker.

  • Theseus

    A contract is a legal document that must comply with the laws of the state where jurisdiction attaches. Governments, not individuals, make the laws. Every government official, high or low, is bound by the Constitution and the First Amendment. Judges are government officials. A contract is only enforceable by law, and even arbitration is, ultimately, subject to judicial review. A judge – a government official bound by the constitution – is prohibited from proscribing, or interpreting religious speech, even in civil cases.

    At Issue then is, was Phil Robertson’s speech religious? If it was, then government – the judge – is constitutionally prohibited from entangling the government in religion. It cannot determine the content of the speech, assess the merits of the speech, or allow the speech to be examined for its effect on others who are not specifically named in the speech. The would, therefore, be a violation of the Constitution to allow what Phil Robertson said into evidence.

    The Issue would then be, was Phil Robertson’s religious speech directed at A&E, or intended to disparage the religious beliefs, or religious reputaiton of A&E? (Is A&E even capable of having religious beliefs?)

    There is no question that the religious speech was made to a third party, who was not a part of the contract; and, its publication indirectly (because of their conduct) offended third parties who are not parties to the contract, are not beneficiaries of the contract, and have no standing in any action for breach of contract. It was therefore, not A&E, that was harmed or brought into disrepute, by the religious speech, but rather it was third parties who claim harm, and have interjected themselves into the contract.

    It would appear that in order for A&E to prevail in this matter, they must plead and prove that a primary or substantial function of their corporation is to be an open advocate for the harmed group; and, that such advocacy was not only widely know, but that all parties to the contract knew of such advocacy.

  • ipandentertainmentlaw

    Thank you for the great conversation. Whether you agree with Phil or A&E, I believe A&E had the contractual right to do what it did. The arguments regarding freedom of speech and freedom of religion are compelling and heartfelt, but the language in the contract Phil signed will be the final decision maker.

  • bakerandrannells

    Here the issue is all about contract between phil and A&E. And A & E has the rights to terminate the contract with anyone who has signed it agreeing on certain clauses.

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