The New England Patriots recently released star receiver Antonio Brown following allegations of past misconduct, which Brown denies. Setting aside instances in which such clauses are prohibited by unions, Brown’s termination highlights two issues that should be carefully considered when drafting any morals clause – what constitutes a morals violation and timing.

How Bad Is Bad?

Assuming no prohibitions from relevant guilds, sports teams, studios, advertisers, and other employers may negotiate with talent over what conduct qualifies as grounds for termination on morals grounds. Some behaviors, such as sexual assault, criminal fraud, or acts of violence, are so clearly over the line that they are generally non-negotiable and always included. Defining exactly what additional conduct counts as “bad behavior” for this purpose is often highly contentious, however, and can involve many categories of behavior, with qualifiers relating to, among other things, actual damage to the employer. For instance, both parties can agree that an employee may be terminated for cause based on “bad behavior,” as defined in the contract. But what happens when the company/studio/employer seeks to terminate a relationship on morals grounds, but the talent disputes the truth of the allegations? To avoid uncertainty, the parties may wish to define what level of investigation or proof is required before a morals termination is triggered.

Some morals clauses provide that it’s sufficient that the employer “believes in good faith” that the employee engaged in bad behavior. Others require “credible allegations of criminal behavior,” which applies a standard of proof even lower than “preponderance” to trigger a termination based on allegations of illegal conduct that might fall short of the required burdens for success in criminal or even civil proceedings. Still others require standards as high as criminal conviction.

Timing

Although the allegations against Antonio Brown were made while he was with the Patriots, they related to conduct that occurred prior to his joining the team. Imagine that a morals clause provides for termination “if the employee engages in bad behavior that brings the employee or the company into public disrepute.” Does it necessarily follow that both the behavior and the disrepute must occur during employment? Note that “engages” is written in the present tense, so logically it could be interpreted as excluding behavior predating the contract term, even if the public disrepute occurs during the contract term. Similar questions arise if the behavior occurs during the contract term, but the disrepute occurs after the contract term. In that scenario, would any of the employee’s post-term entitlements be subject to termination (or even clawback) on the grounds that the employer discovered (post-termination) that it had grounds for a for-cause termination?

There is no single “moral” answer to any of these questions. But they will be resolved, one way or another. If the goal of the contract is to clearly define each party’s rights and obligations, then it is imperative when drafting a morals clause to focus not only on what constitutes “bad behavior,” but also on the burden of proof required and on the timing considerations.