By Steven J.J. Weisman
BOSTON — On Tuesday, July 2 Anthony Cumia, of Opie & Anthony fame, had an altercation with an African-American woman in Times Square who objected to his photographing her. The altercation escalated to a point where Cumia says he was physically assaulted by the woman. He chose not to file a criminal complaint against her and explained his actions on Twitter by writing “Because I can take some punches w/out wasting the cops time.” Cumia did, however take to Twitter to vent his anger as to the incident in a series of tweets that were interpreted by many as being racist and misogynistic. Among those who considered the rants offensive was Cumia’s employer, SiriusXM which promptly fired him the very next day and issued a terse statement that reads: “SiriusXM has terminated its relationship with Anthony Cumia of the ‘Opie & Anthony channel. The decision was made and Cumia informed late Thursday, July 3, after careful consideration of his racially charged and hate-filled remarks on social media. Those remarks and postings are abhorrent to Sirius XM and his behavior is wholly inconsistent with what Sirius XM represents.”
Cumia appeared to be surprised by his firing and tweeted the next morning “Sirius decided to cave and fire me. Welcome to bizarro world. Fired for s**t that wasn’t even on the air & wasn’t illegal. So, who’s next?”
He doesn’t get it.
I have not read Cumia’s contract, but it undoubtedly contains a “morals clause” which permits his employer to terminate his employment for violating the morals clause. Morals clauses are nothing new in entertainment contracts. They go all the way back to the 1920s. They permit the employer to terminate the employment contract for behavior deemed reprehensible that negatively impacts the employee’s public image and by extension that of the employer. The widespread use of morals contracts began in Hollywood in the early 1920s following the public’s rejection of movie comedian Roscoe “Fatty” Arbuckle who was being paid by Universal Pictures three million dollars on a three year contract at the time that he hosted a party at which a young woman attending the party died. Arbuckle was arrested and charged with rape and murder. Although he was found not guilty of these charges, the public turned against him, his career was ruined and Universal Pictures took a financial hit. It was shortly thereafter that the entertainment industry, as a matter of course, began to include morals clauses in all of their contracts.
But what is reprehensible behavior sufficient to trigger a morals clause? Times change and a drunken driving conviction that years ago might have resulted in a firing under a morals clause would not be considered so serious as to warrant the invoking of a performer’s morals clause. Morals clauses can vary significantly from contract to contract depending primarily upon the relative bargaining power of the employer and the employee. Obviously the employer wants a broad definition such as “any act, or conduct of the employee, on or off duty, which in the opinion of the employer, offends the community or brings discredit, scandal or injury to the reputation of the employer, its sponsors, clients, advertisers or the employee.” The employee would want strongly limited morals language such as “conviction of a crime involving moral turpitude.” In today’s market, as you well know, the employer is most often in the stronger bargaining position when it comes to morals clauses.
But what about Cumia’s complaint that his words were not on the air and they weren’t illegal? He is absolutely correct that he did not make the comments on the air and what he said was not illegal. In fact, if he had made his comments on the air he might have actually been in a better legal position. Don Imus’ infamous comments about the Rutgers Womens Basketball team as being “nappy headed hos” was done on the air as an attempt at humor without any racist intent. His words did not violate any FCC regulation. He was fired by CBS weeks after the comments when CBS gauged that the incident was adversely affecting its advertising. CBS attempted in its public statements to indicate that it was taking a principled move, but the weeks that it took for it to make the decision speak otherwise. Firing Imus when he had not violated the terms of his contract which specifically required him to be “irreverent” and “controversial” ultimately cost CBS $20 million that it ended up paying Imus after he sued them for terminating him in violation of the terms of his contract.
Cumia’s comments were considered by Sirius XM to be worse than Imus’ words because unlike Imus, they were not done in any attempt at entertainment. As I established earlier, I have not read Cumia’s contract, but if it has, and again, it most likely does, have a morals clause that deals with off duty remarks or actions that bring harm to the reputation of the employer, he may well have been legally terminated.
But the game doesn’t end there.
Generally, entertainment contracts contain arbitration clauses when there is a disagreement as to the interpretation of the contract and it is rare to have the morals clause be interpreted in the sole discretion of the employer. Therefore Cumia may have grounds to argue that his actions did not sufficiently offend the community and bring harm to SiriusXM. It would not be surprising to see Cumia demand arbitration.
However, for the rest of us it is important to remember that the battles you can avoid are the best battles. In an era of cell phone cameras and totally pervasive social media, everyone is always in the public eye. Everything you do regardless of whether it is on the air or not can affect your employment. That is just a fact of modern day life and the sooner you recognize it and act accordingly, the better will be your job security. It also helps to have a good lawyer negotiate your contract. Just saying.
Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine and publisher of the websitewww.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss the subjects of identity theft and scams.