Morality Clauses In Sports Contracts : A Hit Or A Miss?

Why do we need Morality Clauses?

^[1] As a result, their actions and behavior will inevitably be attributable to the company. Quite often, situations arise wherein an athlete is found to be engaging in inappropriate behavior or doing something that he should not be doing. When this happens, it reflects badly on the companies that have signed the athlete as their brand ambassador for instance. This in turn tends to affect the company's success rate in terms of the product it is trying to endorse through the athlete. In fact, one of the first instances that gave way to the incorporation of morality clauses in sports, contracts was the case of Babe Ruth in 1922, where the New York Yankees modified their contract with the baseball player to include a clause that restricted him from drinking alcohol at all times, as a result of his inappropriate behavior while being intoxicated.^[2]In order to prevent such scenarios from recurring, brands now include morality clauses that dictate certain things that the athlete in question would have to necessarily refrain from doing if he/she wishes to remain attached to the brand or company.

^[3]. On May 2^nd, 2011, Mendenhall put out a tweet in response to Osama bin Laden's death which, according to Hanesbrands, was problematic. While the latter terminated the contractual agreement with Mendenhall, the athlete filed a law-suit for recovery of the huge sum of money that he was supposed to get if the contract subsisted. The Court rejected Hanesbrands' motion to dismiss while holding that there was still some ambiguity regarding the nature of the public's opinion to the tweets and whether they came under the purview of the morals clause^[4]. In situations like these, given the immense fan following that the players have, the owners of the brand take drastic steps in curbing certain content that the player may share on these websites. This brings us to the predominant question of whether these restrictions are reasonable or not.

To what extent are these Clauses reasonable?

^[5] However, an important question to raise at this point would be "Where does one draw the line?" While on the one hand, it is important to take into consideration the sentiments of the people in society, on the other hand lies the right to freedom of speech and expression guaranteed to every individual by their respective constitutions. When an athlete/celebrity expresses their views on particular issues or topics, it is difficult to criticize them for going against the morals of the company or the public image they are expected to maintain, when all they are doing is exercising their basic right to free speech. In the process of protecting the interests of the company or the employer as the case may be, quite often the interests of the athletes lie forgotten or ignored. This stance is problematic and therefore leads to the pressing need to engage in dialogue to clarify what can or cannot be done. If at all such a restriction on speech needs to be imposed via a morality clause, it is important for the employer or company to furnish reasons as to why there is a morals clause in the first place and communicate the same to the individual^[6] so that both the parties can jointly cull out and come to consensus on certain specific areas/topics which the athlete will refrain from commenting on. This method would be beneficial for two reasons: firstly, the athlete is not restricted in terms of expressing his opinion, subject to a few issues, and his right would not be curbed. Secondly, the more specific the morality clause is, the lesser number of wrongful terminations that would crop up as a result of stringent provisions and penalties.

^[7] For instance, consider the example of Curt Schilling,^[8] who is a former MLB All-Star pitcher and ESPN baseball analyst. In 2016, Schilling shared a transphobic photo on Facebook, subsequent to which his contract with ESPN was terminated. He argued that he had merely shared the photo and it was not a result of his way of thinking. However, given that social media platforms have ways of linking one person to the thoughts and actions of another^[9], it puts athletes in a difficult position, often leading to termination as seen above. Moreover, quite often one of the reasons why the tweets or posts that are put up by athletes are problematic in the eyes of society could be because there is a lack of proper context provided to the larger public.

^[10]Activities that are done during the non-working hours of an athlete should not be subject to such intense scrutiny. In other words, the player should be allowed to hold on to whatever little form of privacy he may have as a result of this career which can only be achieved by doing away with arbitrary restrictions.

^[11] Looking at it from a purely general sense, moral behavior would refer to a type of behavior that would adhere to a certain conduct put forward by a society. Therefore, when parties enter into disputes with each other, the Courts are left with the task of determining what the real intentions of the parties were while they were drafting their morality clause, before arriving at a decision.

How do Morality Clauses affect an Athlete's Career?

In terms of the effects that morality clauses have on an athlete's career, the list is one that attracts a level of concern. Morals clauses, if violated, can result in a lot of financial trouble given that a substantial amount of a celebrity/athlete's income comes from endorsement deals and brand publicizing. Moreover, when a company terminates their contract with a particular athlete, the news spreads so fast that in a matter of a few hours or days, the larger public is aware of the termination. This affects the number of potential employers that may have been thinking of signing an agreement with the same athlete in the future and as a result decreases the chances of an athlete from being offered other major endorsement deals.

In addition to this, morality clauses take a toll on an athlete's personal life as well given that he/she has to be extra cautious regarding their behavior because any little thing could be looked at as immoral behavior which would subsequently prove to work against the athlete's interests. They impose certain obligations on the athlete that he/she may or may not want to necessarily follow but will ultimately have no choice but to do so.

The Need for more Airtight Morality Clauses:

^[12] From the employer's perspective, having a broadly worded morality clause would be more beneficial given the flexibility it provides to terminate the contractual agreement if an undesirable situation regarding the behavior of an athlete were to arise. For example, when a company imposes certain territorial restrictions on an athlete via these clauses, the latter should ensure that the company does not take advantage of the broad clause and make restrictions that apply over the world if it is, in reality, only concerned with one or two particular territories.

^[13]

When it comes to social media, it is essential that parties specify and agree on what kind of online communication and media presence is alright because not doing so would lead to an unfair curb on the athlete's right to express himself and as a result, interact with his fans. This does not go to say that there should be unfettered freedom given to the athlete to post whatever he may wish to on these platforms. This would be problematic given the massive amount of influence they hold over the people who look up to them and follow their views. Hence, it would be appropriate to arrive at a middle ground and have restrictions but at the same time ensuring they are reasonable and fair keeping in mind the interests of both the parties.

What other measures can an Athlete adopt to address this issue?

^[14], wherein the situation could be discussed and where the player also has the option to bring in a third party to assess the scenario.

^[15]

Within the framework of these clauses, athletes could specify what their rights would be if the company were to invoke the morality clause at any stage during their contract; and these rights would often include the option, on behalf of the athlete, to terminate the contract or seek damages from the company for the same. It should also include provisions that would allow the athlete to issue a statement in response to any allegations that may arise against him on account of his 'immoral' behavior. Another aspect that these clauses could include is the extent of punishment for improper conduct, i.e. instead of taking the drastic step of terminating the contract, the reverse clause could suggest that the athlete be charged a fine or be suspended from further endorsements of the company for a specific period of time.

Conclusion:

Given the numerous amount of instances that an athlete faces with respect to wrongful termination or unjust morality clauses curbing their basic rights, it is high time that employers and companies take into account the various consequences that will arise if morality clauses are not treated as subjectively as they should be. Moreover, at a time when social media is the most popular and widely used platform to spread news and share opinions which inevitably lead to a lot of controversies, the need for tailor-made, airtight morals clauses is increasing. In order to protect the interests of sportsmen in different fields, these factors need to be strongly considered to avoid unnecessary restrictions that often lead to the end of a person's career.