Mo·ral·i·ty Clauses

by Beth Henries

/məˈralədē/ /klôz ez/ • noun

Definition:  A morality clause is a provision within a contract that aims to curtail, restrain, or proscribe certain behavior of a party to a contract. 

Examples: Famously, Babe Ruth’s 1922 contract with the New York Yankees required Ruth to “refrain entirely from the use of intoxicating liquors and that he shall not during the training and playing season in each year stay up later than 1 o’clock A.M. on any day without the permission and consent of the Club’s manager.”  ❌🍸✔️😴⚾️

This is an example of a very narrowly tailored morality clause. The Bambino could do any number of morally objectionable things without running afoul of this provision.  As done by Ruth, in an endorsement agreement, a public figure will generally want to be as specific as possible in the drafting of a morality clauses.  This will help to ensure ease of compliance.  

On the other hand, brands contractually aligning themselves with public figures will likely wish to cast a wider net in the preparation of their morality clauses. A brand-centric morality clause might provide the brand with the option to terminate or suspend a contract if the public figure: (i) commits any act involving moral turpitude, drugs, or criminal activity; or (ii) commits any act, or becomes involved in any situation, that brings the public figure into public disrepute, that shocks or offends the community, or that reflects unfavorably on the brand.

Why:  In our humble opinion, the morality clause is one of the most important provisions within any contract with a public figure. Publicly aligned brands and celebrities generally will want to ensure that they can exit an agreement if the other party engages in activity, or makes statements, that are contrary to their moral codes or brand image. 

In an environment of cancel culture, it is imperative to be able to swiftly cut ties with a party that is making waves in all the wrong ways.  🌊 🌊 🌊

Tips + Tricks for Brands:

  • Brands should be careful to cover past “bad acts” that may become public, or more public, during the term of the contract.

  • Brands should seek to carve out allegations of activity falling within the scope of the morality clause.  A company will certainly not wish to wait to cut ties until the resolution of a criminal or civil trial.  

  • Available remedies should be clear.  In addition to suspension or termination of a contract, a brand may consider a claw back of pre-paid fees or even liquidated damages in some circumstances.

  • With the rise of the nepo-babies, brands may wish to tie a public figure’s family, or other close associates, into the morality clause.  This way, if the talent’s family member draws significant public backlash, a brand can distance themselves if desired. 

  • Often brands seek to include provisions in their morality clauses that can be triggered if the public figure makes negative or derogatory comments about the brand or the brand’s industry more generally. Geographically, however, this can also be included in a non-disparagement clause. 

  • Brands (and a public figure, if there is a mutual morality clause) should seek to include waiver language that makes it clear that a brand’s decision to not enforce their rights under a morality clause does not constitute a waiver of such clause.  Brands should also try to prevent any time limits on how long it may have in order to seek a remedy under a morality clause. 

Tips + Tricks for Public Figures:

  • Public figures should disclose, in advance, any actions that might fall within the scope of a morality clause.  For example, if a morality clause prohibits drug use, the public figure might want to seek to limit this to illegal drug use. Further, if the public figure smokes marijuana, they should tell the brand this up front and should seek to carve marijuana use out of the clause.

  • Public figures should seek to define “moral turpitude.” For instance, one may wish to expressly exclude activities that very conservative individuals find morally objectionable but that other communities find to be mainstream.  Examples of such carve outs include drinking alcohol or cannabis use, homosexuality, co-habitation prior to marriage, or open marriages.  

  • Morality clauses often seek to prevent a public figure from “offending the community.”  When faced with this language, public figures should seek to narrowly define the subject community.  For instance, attendees of an Evangelical Christian Sunday service might have a different threshold for offense than the audience at Coachella.     

  • Public figures should insist upon the mutual application of a morality clause that, when applicable, allows them to exit an agreement if the brand acts in a morally objectionable way.  For instance, Kim Kardashian may have wished to avail herself of a mutual morality clause in any endorsement agreement she might have had in place with Balenciaga in 2022 when their scandalous ad campaign featuring children with BDSM-themed teddy bears and backpacks (among other alarming “easter eggs”) was released.     

  • Public figures will want to contractually ensure payment for activities that took place prior to termination or suspension due to a morality clause and to limit any claw back provisions. 

  • If a brand suspends an endorsement agreement due to a morality clause, the public figure should seek revocation of exclusivity provisions during the suspension or continued payment during that time. 

© Henries PLLC 2024.  This Blog is for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. Henries PLLC assumes no liability in connection with the use of this publication. Please contact us at monique@henriespllc.com if we can be of assistance regarding the discussed subject matter.

Emma McGoldrick