Melina Iavarone is a current 2L at Boston College Law School. Her recent article, “Selectively Scandalous: The Subjectivity Problem of Morals Clause Enforcement in Talent Contracts,” examines how broadly drafted morals clauses in sports and entertainment contracts enable subjective and selectively applied enforcement. The piece provides an analysis of how public backlash, reputational risk, and corporate incentives influence companies’ use of morals clauses against talent. The paper considers how industry reliance on vague drafting can produce inconsistent outcomes that undermine transparency, fairness, and core contract principles, and proposes a more precise, formalist drafting approach. Iavarone reflects below on her research process as well as the growing role of social media in shaping modern morals clause disputes.
Priya: For people who have never heard the term before, what is a morals clause and why are they suddenly so visible in the sports and entertainment field?
Melina: For people who aren’t well-versed, fundamentally, a morals clause is supposed to tell talent, here’s the line in terms of behavior: don’t cross it. It’s supposed to lay out what talent should keep in mind about what’s okay and what isn’t. The provision is about protecting company reputation and putting talent on notice by saying “Hey, if you do cross this line, there’s going to be a consequence.” That consequence is termination.
Something I noticed was that morals clauses really aren’t talked about that much, but they’re becoming more common in legal discourse because so many more reputation related deals are happening, especially with the booming influencer market and rise of user-generated content. Endorsement deals and partnerships generally are becoming so extremely monetized. It’s commonplace for companies to seek out opportunities to capitalize on celebrities’ personalities. So what these celebrities are going out and doing can have a direct impact on how consumers view partner companies.
Priya: It seems that social media must have played a big role in modern scandals and how they’re monitored. So has the speed of online backlash changed how these clauses function compared to earlier forms of these kinds of contracts?
Melina: Yeah. Based on my research and as a consumer of media, what I’ve seen is that this selective enforcement of the morals clause has always been a thing. But now with social media, it’s harder to sweep things under the rug. People can share their opinions and disseminate backlash so quickly. One hundred percent, that’s contributing to all of this coming to light more often recently. It’s just so easy to inflame people and spread thoughts across all sorts of platforms. For example, the Tiger Woods scandal from 2009 was televised and it was obviously huge news, but the more recent Olivia Jade situation really shows how social media plays a role in disseminating scandal and shaping how strongly people feel about it. It’s much more layered now, given that there is inevitably much more conversation taking place.
Priya: One of your central claims in this paper is that enforcement isn’t actually about morality so much as perception. Could you explain how public backlash rather than the conduct itself ends up determining whether a contract gets terminated?
Melina: So it all goes back to drafting. Morals clauses appear to serve as a blueprint where if talent does X, Y, Z, they’re done. But that’s not what happens in practice. For example, if talent goes out and starts spewing hate speech, companies know that they have the power to enforce this provision, but they aren’t required to by law. So it really just depends on how the public is taking it and whether the company thinks that the behavior will cause the partnership to no longer be profitable. To elaborate, if talent went out and spewed hate speech, and for whatever reason, perhaps they have a cult following, enough people sided with them, then the company is unlikely to enforce the clause, regardless of how disdainful it is. The actual behavior itself is just one piece of it. Public reaction is the other, more telling piece of whether enforcement will happen.
Priya: Going off that, you had also suggested in your paper that sometimes companies wait before acting. So why do you think they tolerate some of this controversial behavior for a period of time and then suddenly terminate a contract? Why do they not take preventative action?
Melina: I think they definitely wait to see if it blows over, especially considering the amount of money that a deal is worth. Take Tiger Woods and Kanye West. Brands have poured so much money into these people. Brands sometimes work with talent for years, investing in them as walking ads. These people are investments. Companies take time to assess if they have really been irreparable harmed to warrant flushing all that money down the drain and starting from scratch with new talent, or if they should stay the course. There’s a bit of a waiting game.
Priya: I want to talk a little bit about how these moral clauses affect the talent side of the relationship. How does this impact younger artists or influencers who may not have as strong bargaining power?
Melina: I think that especially with less developed talent, they inevitably have fewer supporters who will stand by them no matter what they do, unlike Kanye West, who has very large group of unwavering fans. This is largely why Adidas ended up waiting so long. The other side of that is how less developed talent measures up with the companies that they sign with. A small artist or influencer, for example, will have less bargaining power in negotiating a morals clause because they present less value. If you’re an up and coming influencer, and you just got your first offer for a lucrative deal, you’re probably going to sign it, regardless of how the morals clause is drafted. So there’s two sides to the bargaining power problem. Fewer people backing them, combined with less value as a company asset, less developed talent have more to worry about and are likely at a higher risk of enforcement, especially in short-term deals.
Priya: In some cases, their relatively private misconduct triggered termination, while in others, they were highly public, and even criminal allegations did not lead to termination. So what does that contrast reveal? What do you think explains that inconsistency?
Melina: What all of these cases show together is that talent conduct isn’t outcome determinative; third party reactions and company motives are. We’re seeing this continuum, this broad spectrum of what you can call immorality, and it’s arguably a free for all. It’s confusing, but what helps make some sense of this ambiguity is that each company has their own reasons, whether it be economic or purely PR-centered. For example, with d4vd case, a situation where there hasn’t been any criminal charge or conviction, it’s possible that his labels are thinking that they’ve put so much time, money, and human capital into this person, and without a charge or a legal grounds for enforcing the clause, it might be worth it to stay the course for a while.
This just shows how unfixed and malleable the provision truly is, and how behavior is a moving target. I think it’s fair to say that some of this misdirection could be attributed to the fact that courts rarely interpret moral clauses directly.
Priya: Why do we think there’s relatively little case law despite how common you mentioned these provisions are?
Melina: The thing is, morality is inherently subjective. It’s not black and white. At the end of the day, it’s hard to say that there is always a right answer. And I don’t think there needs to be one. I don’t think it really is for courts to decide what’s moral and what’s not. That’s a hard thing to do. However, I do think that companies should be held accountable to the standards that they set, and they should set them proactively. That way, when talent crosses those pre-drawn lines, enforcement is expected and can be a more uniform practice. This also signals to consumers what a given company stands for and what they will and will not tolerate. What’s more, it would help corporations regulate themselves and promote more responsible retail and entertainment industries as a whole. So, it may not always be the courts’ role when it comes to making moral judgments about behavior, but this doesn’t mean that some responsibility falls on no one. It requires some corporate self-policing.
Priya: You argued that broadly written clauses can undermine basic contract principles like good faith and fair dealing. So why do you think a reputational clause raises a legal problem, rather than just a PR or ethics question?
Melina: My takeaway is that the purpose of a contract is so that there’s predictability, and so that parties bound to a document are held accountable to fixed standards that all parties are notice of.
That’s where the legality comes in. A contractual provision is supposed to function as a proactive, protective mechanism. If, instead, it’s operating like this ex post tool for discretion, this issue stops being merely PR-centered and becomes a larger drafting dilemma that needs to be addressed. The upshots are multi-layered. Enforcement can destroy someone’s career, a lack of enforcement affects consumers’ view corporations, and there are broader policy and cultural impacts as well. This is a territory that is in need of increased uniformity.
Priya: I want to shift gears a little bit to talk about your writing process. So while researching for this, was there an example that changed your own intuition about what would, or what should justify termination?
Melina: I remember being there as a consumer of media and college applicant during the Olivia Jade situation. I remember being infuriated. I was with that camp of people on social media who were inflamed. Now though, viewing the scandal through a legal lens, I feel a bit different, given that I am very skeptical that her contract mentioned anything about association, as opposed to participation, with white collar crimes as a potential trigger. That level of specificity is not industry standard. What went down was very likely not expressly in writing. Knowing what I know now about how these clauses function, I am slightly uncomfortable with her being released from her contract while lacking the foresight that a binding agreement should provide parties.
That said, my mind hasn’t changed about what should or should not justify termination. However, I feel strongly that whatever a company decides is not justifiable should be delineated with as much specificity as possible. I don’t need every company to have the same moral compass as I do – I just believe that they should have one and act according to it. For me, it’s about transparency.
Priya: You ultimately propose a more precise drafting approach for these clauses. So what would a better morals clause actually look like, and how would it change the relationship between companies and talent?
Melina: I do propose a more formalist approach, but I want to be clear that this does not call for ultraprecise, exacting wording, nor does it call for forcing companies to abide by a standard that they don’t agree with. However, I do think that by adding more specificity; for example, by noting that association with a nonviolent crime or having an extramarital affair in one’s private life, we can see less selective enforcement.
Still, I do think it will impact the relationships between talent and brands. There’s one side, where specificity might be more approachable for talent because they know exactly what is expected of them, and there won’t be any career-ending surprises. But at the same time, if a clause does encompass deeply personal events like an extramarital affair, some talent may be dissuaded to enter a deal if they feel that that level of inspection is too intrusive, or if they simply don’t believe that they can make that promise. Nevertheless, a more formalist approach will make for more predictable and responsible industries and promote fairness in contractual arrangements, which is critical. It would be interesting to see how the proposal would play out and if it would succeed in decreasing selective enforcement. I also suggested the idea of normalizing an amendment process of the morals clause to reflect what’s happening in society, especially today, as we are living in a particularly inflamed social and political climate. Companies amend contracts all the time; why not amend the morals clause as well?
Learn more by reading Iavarone’s piece below:
