ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, February 28, 2011

The Sheen Has Worn Off.


Charlie Sheen’s antics, documented virtually everywhere, have kept the public agog for months.  As the seriousness of his scrapes escalates, questions swirl about how this will all end.  As parents caution a hyperactive child obviously heading for a fall that “it will all end in tears”, I am rooting for a happy ending, despite all indications.  I am hoping, as I watch this awful drama unfold, that it will not culminate in a tragic end. 

It was only a few weeks ago that Charlie Sheen reportedly announced that his contract for Two And A Half Men has no morality clause.  It was alleged that he proudly asserted that he could do as he pleased, because he had not given the powers that be the contractual power to ‘dominate and totally interfere with my personal life’. 

The unfolding drama raises contract questions galore.  Is it true, for instance, that there is no moral clause in his contract?  Really? It almost makes you want to incredulously ask who wrote the thing, until you realize that morality clauses are no longer de rigueur –  at least not in entertainment contracts.  He may even have such a clause in his contract - some accounts have him confirming the existence of such a clause but admitting that he hasn’t read it. 

Clause or not, good luck Charlie; in the past a mere whiff of scandal could be the kiss of death for a career  – yet this has not happened to Charlie - yet.   A conceptual pair of reins over his scandalous behavior would do him some good, I think.  A morality clause, and a carefully crafted artistic control clause, for example, could do some good.  Regarding contractual control over his artistry however, this may depend on where performing ends and true life starts for Charlie.  The two may have blurred into one.  It almost seems like he was hired to play himself.  (Does that make anything he does off set a spin-off?  One might be forgiven for thinking so by his behavior).

It seems, in any case, that artistic authenticity  is important to Charlie.  Charlie wants to be true to self .  The tragic thing about this is that he allegedly believes that authenticity precludes sobriety - at least for him. This brings to mind a pantheon of tormented stars that departed before their time.  It makes you want to shake the guy saying “Snap out of it man – you’re not doomed.  It doesn’t have to end this way".

Did he ever take the time to read the contract? We can safely presume that he signed it or that it was signed on his behalf, but he allegedly claims to not have read it.  Perhaps he is no different from the large number of people who routinely sign before reading. Or perhaps he has not read it because he feels that is what he pays his legal team for.  It’s hard, admittedly, to imagine Charlie Sheen taking the time to read a how-many-pages-long contractual document of carefully worded clauses at this point.  Perhaps he once did – during that awful five years of sobriety a long time ago. 

Maybe he enough patience for his legal team to give him only the nitty gritty of his contract i.e. what behavior will get him fired.  He certainly seems confident that he has a long string to play with.  Although he comes across as  cocky, I suppose he has some reason for this – he is not known as Teflon Charlie’  for nothing. 

So here’s another question – what makes it so difficult for the reputational mud to stick to Teflon Charlie?  Does he have a super slick contract assisting his PR agent? If so, what might be the ingredients for the slickest contractual Teflon – a tepid moral clause and wide discretion?  The right to engage in ‘artistic expression’ so long as that bargain, and its expression, remain on the right side of public policy?  Maybe being liked in the industry pragmatically translates to Teflon?   Or is it just a good old double standard at work? 

It’s hard to believe a party the size and sophistication of the CBS TV/Warner Joint Venture would leave itself contractually vulnerable to the antics of a Teflon profligate.  CBS/Warner is surely working through its arsenal of options.  That would include termination – firing Charlie – although the CBS/Warner has stopped short, for now, of doing so. 

Another option, of course, would be to stand by Charlie - with gritted teeth.  The show’s ratings have not been harmed by his troubles.  It is likely, in fact, that his antics have helped the ratings. The show has performed so strongly, that if no more epsodes are made, the CBS/Warner will still profit handsomely from syndication which likely would go on for years.   That’s good news and bad news for Charlie.  It's good news if he gets a percentage cut of profits.  Onthe other hand, the fact that he is no longer indispensible may be a bad omen for his continued antics as a CBS-Warner star.

CBS-Warner has undoubtedly weighed its choices every step of its turbulent journey with Charlie.  So far the preference has been to put a good face on things.  After his latest antic however - savaging the hand that fed him – it will be understandable if the CBs/Warner decides it’s time for the gloves to come off.

Before things turn really nasty, before the last straw breaks the camel’s back, might a point be reached when it becomes immoral – contractually speaking - to stand by and watch an actor, no matter how profitable, implode?  It’s one thing to condone the omission of a morals clause – big boys are allowed to live out the bargains of their choice after all, but when does standing by and watching a train wreck become permissible?  When does  benefitting from the fast motion slide of a rakishly cute actor morphing into something less cute – though compelling viewing - become a breach of the duty of good faith and fair dealing?  “All publicity is good publicity” the show biz adage goes – but might there be a point where standing by an out of control star begins to seem a cynical enablement of that actor’s race to self destruction

He’s a big boy you may say – he knows when to say no – but does he, really?  The ability to say no to poor choices is playing a starring role in this whole drama.  His family is concerned and has asked the public to pray.  Allegedly plagued by all manner of addiction issues, it is becoming harder after his latest rant to argue that Charlie’s ordinary judgment, let alone his contractual ability is intact.  He may even think that HE is a contract. Concerned contemporaries and celebrity doctors are predicting that things will end badly if he does not get help now.

Let’s say hypothetically that the acceptance of an offer to make another season of a hugely popular show could be convincingly shown to be more likely harmful than beneficial to a random troubled star.  Addicted not only to substances, but to public attention, the hypothetical star accepts the offer in a snap.  Establishing that the hypothetical contract is voidable - because the hypothetical star, due to his substance induced intoxication was either unable to understand what he was getting into (unlikely) or act reasonably in relation to the bargain (more likely) , and hence a bad deal for him - could  be a step toward establishing a lack of good faith on the part of the Network.  Entering into a contract ,knowing the star has addiction issues, and then standing by while the star self-destructs amid skyrocketing ratings could arguably qualify if, for example, the contract obliges the Network not only to provide employment, but employment that is reasonably likely to enhance or benefit to the star's image.  Though unlikely in an ordinary employment contract, this makes sense in an agreement for the employment of an actor - as an independent contractor - to whom image building is of primary importance. The act of facilitating the self destruction of a known addict would be deemed detrimental to that actor, one would hope. The chances of success will be stronger where the argument that the Network callously failed to intervene to wring out maximum profits is credible on the facts.  The omission of a morality clause from the hypothetical star's contract could cut both ways.  While freeing the star from the moral control of the network, it could also release the network from the already minimal responsibility the network might have for the hypothetical star's poor choices

CBS/Warner Bros may be in the early process of disassociating itself from the imploding soap opera that has become Charlie’s life.  The discreet cancellation of the rest of the season first, and then what?  You can be sure of this – Charlie will not go quietly.  He is not happy about the cancellation of the remainder of the season, and he wants the world to know it.

 So, now what? Time to activate some Teflon abrasive – the moral clause (if there is indeed one in his contract) or a close equivalent?  Perhaps another clause might have the bite of a moral clause?  A moral clause is a glorified termination sub clause, in one sense, and as we all know, a termination clause is the emergency escape chute.  If there is no moral clause, check the wording of the termination clause next.  Actions such as consistently failing to be in a fit condition to work, bringing the network into disrepute (a.k.a making the boss look bad), or being charged with a serious felony, could easily fall within the terminations clause of an entertainment contract.

More details will definitely seep out in ensuing weeks.  We will discover whether termination is on the cards for Charlie Sheen - and whether Charlie is really going to sue.  Should CBS/Warner get to the point of pulling the plug – and it’s not a given that it will, it will certainly be interesting to see what finally is deemed grounds to terminate the contract rather than merely exercising the option to cancel a season.   

Eniola O. Akindemowo.

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