Howard Levitt: How courting the spotlight (and Taylor Swift) could backfire on Travis Kelce

‘Morality clauses’ in contracts can leave stars in jeopardy if bad behaviour surfaces

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Howard Levitt and Gregory Sills

Although the average employee’s performance is judged within the workplace, the same is not true for high-profile individuals. Say, for example, Travis Kelce of the NFL’s Kansas City Chiefs, who has recently been “put on the map” for those who don’t already follow professional football as a result of his romantic involvement with Taylor Swift.

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In the world of media and professional sport, employment is far from ordinary. That comes with the territory. Whether they like it or not, as role models for today’s youth, performers such as Swift and Kelce are held to a different standard. As a result, both routinely find themselves at the intersection of personal freedom and professional responsibility.

Because of that, it is common for their contracts to include provisions which can be triggered by various actions. Increasingly, those provisions have been focusing on conduct outside the “workplace” (i.e., not on stage or on the field), imposing standards on their public-facing personas, often dealing with social media presence and personal conduct.

What I am describing are referred to as “morality clauses,” contractual terms designed to protect an employer’s reputation when the employee’s actions threaten to tarnish it. They are a safeguard against public relations disasters.

The application of these clauses is far from straightforward as they tread the delicate line between preserving a company’s image and infringing on an individual’s autonomy.

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Many are surprised to learn that morality clauses are not just for the rich and the famous.

Indeed, given how quickly things spread online in this ever-connected world, employers are attuned to the fact that reputational disaster may strike at any moment as a result of their employees’ actions.

In response to this omnipresent risk, modern contracts are increasingly finding morality clauses in place even for some entry-level employees.

A typical morality clause may mandate that an employee must conduct themselves in a manner that does not bring disgrace, scandal or damage to the reputation of the employer. They often include a wide range of behaviours, from criminal activities and drug use to actions that may be deemed morally reprehensible in the public eye. This is where it gets tricky.

As is commonly the case in law, the devil is in the details. Therein lies the ambiguity of morality clauses. What constitutes disgrace, scandal or damage to reputation naturally varies based on one’s perspective, opening the door to a host of dilemmas. After all, in an increasingly connected world where personal and professional lives often intersect, determining where one ends and the other begins can be challenging.

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What happens when an employee’s stance on a particular issue is at odds with the values or public perception of the employer?

The unfortunate reality is that free speech is increasingly losing out to the common prevailing ideology. We have already seen the weaponization of professional regulatory bodies overstepping and reprimanding their members for holding opposing ideological views — a matter for which our firm is seeking intervention by the Ontario Court of Appeal on behalf of Dr. Jordan Peterson.

With all of this in mind, although Kelce may be the NFL’s best tight end, he should remain mindful of the fact that life comes at you fast, especially when dating one of the world’s biggest stars.

In the cutthroat world of the NFL, where most careers are brief and even the most lucrative contracts are less than fifty per cent guaranteed, publicity is a double-edged sword. While Kelce may be enjoying seeing his star rise, with increased jersey sales and a wider social media following, he would be wise to keep his powder dry and stay focused on his craft. After all, not all romances have fairy tale endings and public opinion can turn on a dime. Such off-field distractions have the potential to derail even the strongest of personalities, especially when they are subject to onerous morality clauses in their employment.

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In the meantime, we recommend that you dust off your existing contract and check to see whether or not your employment is subject to any morality clauses that you had not previously considered. Even though few of us rise to the stardom of Swift or Kelce, the last thing you want is to put yourself in the crosshairs of your employer, particularly when your contract explicitly warned you of such risks.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Gregory Sills is a partner at Levitt Sheikh.

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