No one ever said being a lawyer is the best way to win friends. Lawyers are the bane of most people’s existence. But, I like to say, I’m the good kind…until I am not. Probably like now, after you finish reading this post.
I’m an Entertainment Transactional attorney, meaning I negotiate contracts for my clients. I’m also the lawyer who fights for the artist, the underdog. But I also have represented several large corporate clients as outside general counsel: namely Vibe Magazine for nearly 10 years until they ceased print production and Code Black Entertainment, one of the world’s largest urban DVD producers whose videos were then distributed by Universal Pictures just to name a few, so I know a little something about how these “Big Companies” roll. I have also been duly licensed in the State of California where this complaint is filed, since 1997.
As an artist’s lawyer, I have come head to head with both Viacom and BET on several occasions. One deal in particular comes to mind when I was representing one of the largest tennis players in the world in a deal with BET, so I have been up against this company with a juggernaut of a client with leverage, like Gabrielle Union is in this instance.
Out of journalistic and legal integrity, I acknowledge that I clearly have not seen the contracts at issue as they are not attached to the complaint, so this is opinion is based solely on the complaint filed Tuesday with the Superior Court of California https://pmcdeadline2.files.wordpress.com/2016/10/gabrielle-union-complaint-wm.pdf
At the outset, in my personal, non-legal opinion, I do not agree with BET doubling up on production episodes and increasing the number of episodes to 20 from 13 over previous years. This seems like a shady way for BET to get out paying Union the 5% “bump” that she is entitled to under the contract. Maybe there were productions issues behind their decision, who knows? However, what I do know is legally, according to her own lawyer, BET clearly has the right to produce up to 26 episodes. I like to remind people, "What is legal is not always right," (think OJ Simpson verdict) but BET is not legally wrong here. Trying to give merit to his complaint, Singer throws the kitchen sink in there regarding why BET wouldn’t produce more than 13 episodes: because everyone said so. Allegedly, everyone from BET’s then lawyer, to then head of scripted programming and now Will Packer, the new showrunner, assured Union that they wouldn’t increase the production schedule from 10 to 20 episodes. Interestingly enough, Packer nor his production company, nor any of the others mentioned are named in the complaint. Further perhaps there are production reasons for doing so, but whatever the case, BET is, undoubtedly, contractually allowed to do so, so score 1 for BET.
Next, according to the complaint, "At the time she (Union) was approached for Being Mary Jane, Union was a movie star and didn't want to commit to a typical network TV series. BET's then-general counsel Darrell Walker assured Union's representatives that the actress wouldn't be required to appear in more than 13 episodes per season — but a corporate policy required her performer agreement to include a provision allowing for a minimum of 10 episodes and a maximum of 26.” Well, any lawyer worth their salt knows there’s an ENTIRE AGREEMENT provision (legally, a “Merger Clause”) included in every contract that reads something like, "This Agreement, when signed by the parties, shall constitute the ENTIRE UNDERSTANDING of the parties with respect to the subject matter herein, superseding all prior and contemporaneous promises, agreements and understandings, whether written or oral," (all emphasis mine) so what anyone allegedly told her is irrelevant. What is contained in the four corners of the contract governs, so don't tell me what the then general counsel told you, don’t tell me what Packer told you, what does the contract say? Some might argue that in California, oral agreements are enforceable but when you have a written agreement and a client who has performed for 3 years under the contract which has since been amended and still does not contain a cap on episodes, and you received an Executive Producer credit, you need to take your ball and go home. Honey, you signed on the dotted line at your peril. Score another point for BET.
Further to that same paragraph, if Union had no interest in doing TV, she should have used that as leverage in negotiating her agreement and gotten BET around that so-called corporate policy. I, and many lawyers, can say from experience if a contracting party wants your client badly enough, these major networks will make a way to break that “policy,” so shame on her team for falling for the oldest line (corporate policy) in the lawyering book...I mean, she is Gabrielle Union, for chrissake “a well known and immensely popular actress,” to quote the complaint Score: BET 3, Union 0.
And Union’s issue with Darrell Walker being on set… cue the eye roll! Although Walker is no longer technically employed at BET, the agreement doesn’t call for a BET employee, it calls for a BET executive. Walker clearly has contractual ties to BET as they aren’t going to let him wander the set just because. That entire argument is a red herring to this breach of contract argument, in my opinion, that seems like bad blood.
And lastly, Union is suing for negligent misrepresentation, I don’t want to throw another lawyer or manager under the bus, but she should be looking at her team for that.
Let me say this, Black Hollywood has heard about Union and BET’s contentious history for years. There have been more than a fair share of rumors of tantrums, halted production and fighting between Union and BET over the course of years of this production (which is allegedly why there has to be an executive on set); there is apparently no love lost between these two. Although you can’t force anyone to work thanks to the 13th Amendment, you can prevent a party from accepting other work if that client fails to show up for work, so Union can’t not just show up if she wants to work on other projects for the duration of her BET contract. If this were about simply the money, this could have been settled. For example, split the baby, compensate Union the additional $15,000 difference for the last 10 episodes…or something…anything to keep production going. This seems like a calculated publicity attempt to have BET terminate her agreement out of frustration and infighting. But as a ratings magnet for BET, that is highly unlikely.
As a fan of the show and a fan of Union’s work, I hope the parties make nice and settle so we see more of Mary Jane Paul sooner rather than later.
Lisa Bonner is a veteran entertainment attorney with over 20 years in the industry representing clients in all areas of the music, television, film, print and digital industries. Lisa is also a television commentator speaking on legal issues, as well as pop culture topics and a veteran host of an entertainment radio show in Los Angeles. She is also host of "The Laws of Entertainment," a podcast available on iTunes, produced by Entertainment Studios and a freelance journalist for various publications, including The Grio, Yahoo and Ebony. Follow her on social media @lisabonner