Does Scarlett Johansson Have a Case Against Disney?: Stephen L. Carter

In the court of public opinion, Disney may well lose its battle with Scarlett Johansson. But the legal question is important, carrying implications for business well beyond the borders of the Marvel Cinematic Universe and the actor who has for more than a decade portrayed the character known as Black Widow.

Johansson claims that the Walt Disney Co. breached her contract last month when it released the eponymous film simultaneously in movie theaters and on the Disney+ streaming service. Because her compensation depends in large part on how well the film does on the big screen, Johansson argues, the availability of the movie at home reduces her potential earnings.

The lawsuit has fans in a whirl, but the fundamental issue arises constantly. Compensation is frequently contingent on a future event, often called a “trigger”: hitting a sales target, closing a deal, selling a certain number of books. Does the party making the payment have an obligation to allow the triggering event to take place?

Consider a real-estate associate who’s promised a bonus if she hits $2 million in annual sales. When she reaches $1.5 million, can the employer reassign her to a desk job to avoid paying the bonus? Probably not. Such conduct might once have been tolerated, but nowadays most courts would say that the company is acting in bad faith if its only motivation is preventing her from reaching the bonus trigger.

Now consider a professional football player who will receive a bonus of $2 million if he is on his team’s roster on the first day of the National Football League’s year, which typically falls in March. In February, the team cuts the player to avoid paying the bonus. Should the player sue (or file a grievance), he’ll lose.