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.