When your influencer risks hurting your reputation?
Lessons from Alix Earle vs Gymshark
Contract formation, termination rights and reputational risk in influencer deals
What happened
Female US fitness influencer Alix Earle initiated a law suit against Gymshark in the UK over a sponsorship deal she valued at around $1 million (reported as roughly £770,000–£775,500). According to the filings described in the press, Gymshark had agreed to pay her for a set of brand posts — reported as three TikToks and four Instagram posts where she promoted the Gymshark brand.
Earle claimed Gymshark backed out of the deal after they discovered online backlash against her due to her perceived stance on the Israel and Palestine conflict. The backlash was linked to a post she had made following the 7 October 2023 Hamas attacks in which she was seen as expressing support for Israel. Important to the case, this post was made before the Gymshark deal was made. Her argument was therefore that her social media history was publicly available before the deal — so Gymshark had effectively accepted that reputational risk when it agreed to the deal terms.
Gymshark’s reported position was that no binding contract had been signed. That turns the case on a single question: was there a concluded agreement, or were the parties still in negotiation? The dispute was reported to have settled out of court, though the precise timing and terms are not clearly public. The lessons as regads how to handle reputational risk related to influencers representing the brand are however wider, and below is a checklist relevant for brands, and one relevant for influencers. Aspects you should consider before signing, and before you stand in for the fact that an influencer has acted in a way that makes it impossible for you to have them affiliated with your brand.
The case - was there a deal
As regards the Alix vs Gymshark case, this turned out to be a contract-formation and termination problem, with a morality-clause twist. Three questions sit at the centre.
A) First, formation: was there a binding agreement — offer, acceptance, consideration and an intention to create legal relations — or just advanced talks and a draft?
B) Second, termination: if there was a deal, did Gymshark have a right to end it, and on what grounds?
C) Third, morality and reputation: did anything in the agreement let the brand walk away because of the influencer having a public controversy or reputational fallout?
The reputational angle is the sharp edge. If the controversial content pre-dated the deal and was public, a brand that later pulls out looks like it is reacting to backlash rather than to any new breach. And prior - publicly available information - should be at the risk of the brand unless the influencer has warranted that there are no such matters and the post/backlash was for some reason very hard to find out prior to the deal being closed.
The timing of Gymsharks change of heart - wanting out of the deal - exposes it not just to a damages claim, but to the accusation that it terminated based on a creator’s viewpoint — a difficult position commercially and legally. And at the same time a super-relevant position for any brand having affiliations with influencers.
Checklist — for brands
Decide when a deal is actually binding. Use clear “subject to a signed written contract” wording during talks and email conversations, and state plainly when a binding agreement is formed (e.g. on signature of a long-form agreement). If you are not clear that all communication prior to the sign contract are non-binding, you might end up with an influencer claiming that you have obligations to pay them based on your negotiations and what you expressed during these.
Write the termination rights you actually want. Set out exactly when you can exit, with what notice, and what (if anything) is payable on exit. This is the key clause to de-risk.
Include a clear morality / reputation clause — and define it. Spell out what conduct lets you terminate, and whether it covers pre-existing posts or only new conduct during the deal.
Address pre-existing content head-on. If you do not know a creator’s history in full - start with a proper due diligence and ask for warranties in particular aspects and matters (this could include e.g. that they have not been convicted of a crime, that they have never stated anything that could be considered anti-feminist or racist). When it comes to contriversal statements and actions it can be hard to catch all - but such warranties in combination with a strong morality clause will de-risk and give you a possibiltiy to take needed actions if something comes up. Also, decide before signing whether you accept the history and the warrants. You generally cannot back on a known risk and then exit when it becomes inconvenient - this will be at your risk.
Use kill fees and approval rights. A kill fee (payable if you cancel before posts go live) gives you a clean, priced exit; approval rights let you control content without tearing up the deal, but keep in mind that the contract must be balanced for the influencers as well, so avoid to extrem and controlling language.
Beware viewpoint-based termination. Pulling a deal over a creator’s political or personal views is a reputational landmine in both directions — manage it through clear, neutral contract terms, not ad hoc reactions.
Checklist — for creators
Get it in writing and signed. A signed agreement removes the “was there a deal?” argument. Be wary of relying on emails and positive energy, DMs or a handshake for a big deal (in the current case we are looking at a six-figure commitment from Gymshark).
Pin down the deliverables and the fee. Specify the exact posts, platforms, timing and total payment, so there is no doubt about what was agreed and what you need to to in order to have a right to get paid under the contract.
Negotiate a kill fee. Make sure you are paid something if the brand cancels after you have committed but before posts go live.
Scrutinise the morality / reputation clause. Understand what could trigger termination, and push back on vague wording that lets a brand exit over backlash to lawful, pre-existing posts. This is key - the deal must be solid and you cannot rely on it otherwise.
Flag known risks up front. If your public profile or past content could attract controversy, raise it before signing so the brand cannot later claim surprise. Also, if you feel that there is a risk that your persona - and your social media style and attitude - risks creating controversy, discuss this before you close the deal. Even demad a written confirmation that the deal does not include the brand having an overall control over your social media channels, only in relation to the post that are covered by the agreement and that you are getting paid by them for.
Keep the paper trail. Save drafts, messages and confirmations — they are your evidence if a brand later denies a deal existed or their right to pull-out of it.
Risk-management takeaways for both sides
Formation is everything. If it isn’t clear when a deal becomes binding, you are one disagreement away from a fight over whether there was a contract at all no matter what rights you have under the contract.
Termination should be priced, not improvised. Kill fees and defined exit rights turn a potential lawsuit into a known, manageable cost.
Known risks can’t be un-accepted. Brands that sign with eyes open to a creator’s history are on weak ground exiting when that history causes predictable noise.
Reputation cuts both ways. Backing out over a creator’s views can damage a brand as much as the original controversy. The contract is where you manage that — calmly and in advance.
This article is for general information and is not legal advice, and describes a dispute as reported in the press. Influencer agreements turn on their exact wording and the facts of each case — always seek legal advice before signing or enforcing a contract, and reach out to us if you want support in this matter: kat@stgcommerciallaw.com