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About a year after he was fired from the production of Jackass Forever, Bam Margera is suing the studios behind the movie and his former collaborators for wrongful termination, breach of contract, and emotional distress, among other claims. His lawsuit, filed Monday in Los Angeles Superior Court, hinges almost entirely on a single document: a “wellness agreement” that Margera says he was given to sign and that required him to stay sober if he wanted to keep his job.
Margera has been open about his struggles with drug and alcohol addiction, struggles that have seen him take at least four trips to rehab. In 2019, the co-creator and longtime co-star of the Jackass franchise found himself back in a treatment facility. His lawsuit claims that on the day after he checked in, Jackass’s Johnny Knoxville, Jeff Tremaine, and Spike Jonze approached Margera with what was, essentially, a sobriety contract. They allegedly told him that if he didn’t sign it then and there, he would “face instant termination from the Jackass franchise,” the suit states. (Disclosure: Jonze previously worked as VICE's creative director and as the co-president of VICELAND.)While Margera’s suit doesn’t include a copy of the wellness agreement (which he says he signed), his legal team claims it required him to take three breathalyzer tests a day, two urine tests a week, and regular hair follicle tests. Additionally, the suit states that the document mandated that he take “several pills” every morning while “a doctor hired by Paramount” watched him do so via FaceTime. If he missed a drug or alcohol test, failed one, or refused to take the medication Paramount’s doctor allegedly prescribed him (which, aside from “pain medication,” is unspecified in the lawsuit), he would be cut from the Jackass franchise, the suit claims.
According to the lawsuit, Paramount hired Margera to work on Jackass Forever in March of 2020, and he spent the next several months developing ideas and shooting scenes for it. But in August of 2020, Paramount fired Margera on the grounds that he had violated his wellness agreement, the suit states. Margera claims he was fired not because he relapsed, but because he had tested positive for Adderall—a drug he says he’s taken for years, by prescription, to treat his ADHD. His attorneys argue that Paramount broke the law by cutting Margera from Jackass for taking a prescribed medication—and that, for a number of reasons, the wellness agreement Margera signed was “legally unenforceable” to begin with. The whole situation is messy, and for anyone who isn’t familiar with the laws cited in Margera’s suit, it’s hard to know who might actually be in the wrong here. To get a better grasp on the dispute, VICE asked two California-based employment attorneys to walk us through the suit. VICE also contacted representatives for every party named as a defendant in the suit—Paramount Pictures; MTV; Spike Jonze; and Knoxville, Tremaine, and their production companies, Dickhouse and Gorilla Flicks—but they have yet to respond to a request for comment. We’ll update this post if they do.
Matt Kaufman, who has been representing employees in California since 1993, told VICE he hasn’t seen anything “even remotely close” to the sort of wellness agreement Margera describes. George Azadian, the founder and president of Azadian Law Group, said the same—though he noted it’s somewhat common, and certainly legal, for employers to require employees to stay sober—both on and off the job. “I've done thousands of employment-setting contracts and never come across this sort of wellness agreement,” Azadian said. “But it's not unheard of that there would be a contractual provision saying, ‘You're going to remain clean.’”
Is Margera’s “Wellness Agreement” Legal?
For the most part, Kaufman and Azadian said, the terms of Margera’s wellness agreement identified in the lawsuit are kosher, from a legal perspective. Employers can require employees to take drug tests, especially if they have a “reasonable suspicion” that employee might be using illegal drugs, Azadian said. “I don't really see any problem with it,” Kaufman said of the alleged drug testing requirement. “He knew going in that this was the deal. If you agree to it, you’re kind of stuck with it.”Nonetheless, there was one claim in the suit—that this alleged wellness agreement required Margera to take a “prescription cocktail mandated by Paramount’s doctor” while calling that doctor via FaceTime—that gave Azadian and Kaufman pause.“That was a really shocking allegation,” Azadian said. “It’s not up to the employer to [have a doctor] decide what drugs a person should be taking. They can't tell you, ‘We're going to require you to take your medication in front of somebody every day.’ If what they allege is true—that Paramount made him take certain drugs—that's a big no-no.”
Assuming Margera was, in fact, fired from Jackass Forever for taking Adderall lawfully prescribed to treat his ADHD, the actor may have a case, Kaufman and Azadian said. Under California law and the Americans with Disabilities Act (ADA), employers can’t fire someone for taking a prescription medication. They’re required to provide “reasonable accommodation” to employees with a diagnosed condition, which—in the case of someone with ADHD—would mean letting that employee take Adderall, if it was prescribed to them. But if an employee abuses a prescription drug, Kaufman and Azadian said, it’s a different story.
Could Paramount Fire Margera for Taking Prescription Adderall?
It’s possible that Margera tested positive for Adderall only because he took the drug as prescribed. But Margera has been open about his struggles with Adderall addiction in the past; earlier this year, he told TMZ that his Adderall use landed him in rehab at least once. If he was taking more than his prescription called for, Kaufman and Azadian said, he’d no longer be protected under the ADA.“If he can show it's a legit prescription, he might have a winner,” Kaufman said. “But if he is getting really high, that complicates this case. Let's say his prescription is one pill a day and he takes 10. That is not a disability accommodation. That's just getting high.”Margera’s suit doesn’t provide evidence to show that he took an amount of Adderall consistent with his prescription. And while his attorneys insist he remained sober during the production of Jackass Forever, his co-stars have cast doubt on that claim. “Everyone bent over backwards to get you in the movie, and all you had to do was not get loaded,” Steve-O wrote on Instagram in May. “You've continued to get loaded. It's that simple."If, contrary to what his lawyers claim, Margera was misusing drugs or alcohol during production of Jackass Forever, “the lawsuit is trashed,” Kaufman said.
According to Kaufman and Azadian, almost all of the alleged legal violations in Margera’s suit are rooted in a baseline assumption: that he was technically Paramount’s employee, and thereby protected by employment provisions in the ADA and other labor laws. In order to win his case, that’s the first thing he would have to prove. But due to the intricacies of hiring practices in the entertainment industry, he might have trouble doing that, Kaufman and Azadian said. According to Margera’s lawsuit, he didn’t sign a contract with Paramount directly. Instead, the studio hired Margera for Jackass Forever through a deal with Margera’s company, Bam Margera, Inc., which agreed to provide Margera’s services to the film for an undisclosed fee. (It’s common for actors to strike film and TV deals through such an entity, known as a loan-out company.) That makes proving that he was Paramount’s employee “difficult,” Azadian said.“If it's a contract between two companies to provide services, that's not an employment relationship,” Azadian said. “But the discussion regarding whether an actor is an employee, or an independent contractor, or a business-to-business—there could be 30 pages written on that issue.”Azadian noted that, despite Margera’s contractual arrangement with Paramount, there’s a chance his attorneys could successfully argue that he was the studio’s de-facto employee. Even if they can’t manage to do that, Azadian said, that doesn’t mean the entirety of Margera’s case falls apart.
What Would It Take for Margera to Win This Case?
“You're going to take what our doctors tell you to take—I don't think that is going to be enforceable,” Azadian said. “Requiring him to take any form of medication, I think, would be the one that [Paramount] is on the weakest footing for and have the most potential exposure for.”
As of now, it appears that none of the defendants named in Margera’s lawsuit have responded to it. They have about a month to do so. Azadian said that at some point over the next 30 days, they’ll either file an answer to Margera’s complaint—in which, more than likely, they’ll deny the claims it contains—or a motion to dismiss, asking a judge to throw out the case entirely.While there’s a chance a judge could agree to dismiss, the odds are slim, Azadian said. Instead, the case will probably move into the discovery phase, allowing both sides to gather information about the allegations Margera’s team made, acquire relevant documentation, and subpoena those involved in the dispute for testimony, according to Azadian. If the suit does go to trial, Azadian said, Margera and those he’s suing probably wouldn’t wind up in court until 2023; due in large part to delays caused by COVID-19, the LA County courts are backed up. More likely, though, the whole thing would be over long before that day comes.“Throughout the entirety of the process, there is a good chance that the matter resolves confidentially through a settlement,” Azadian said. “Well over 95 percent of cases in California settle. Attorneys always have it in their mind to reach a resolution that’s in the best interests of their client compared to several years of litigation that will be costly, and may have an uncertain outcome.”Follow Drew Schwartz on Twitter.