Media Management

Where Control Is Lost: Why Marketing Contracts Need Rethinking

Marketing contracts are often outdated before they’re even signed. Not because the people involved lack expertise, but because the documents themselves haven’t kept pace with how agency relationships now function in practice.

Too often, the contract is treated as a postscript, a procedural step once the pitch is over and the decision made.

But that moment is often where control quietly begins to slip. Not through dramatic failures or legal disputes, but through small, structural misalignments: assumptions around trading models, ambiguity in data rights, loose accountability, and silence on the tools now embedded in delivery.

These aren’t legal oversights, they’re operational gaps. And they are not uncommon.

The ISBA Media Services Framework 2025 reflects how much has changed. Buying models have evolved. AI is shaping delivery. ESG expectations are rising. But many contract templates still default to the last decade: silent on automation, vague on data, and blind to the commercial realities of principal trading.

If a contract doesn’t mirror the way media is now planned, bought, and optimised, it can’t offer meaningful protection or support.

And when things go wrong, that silence is where the problems tend to begin.

Where Control Slips: Five Structural Gaps

These aren’t edge cases or theoretical risks. They come up across agency relationships of all sizes, including those run by capable, experienced teams.

The patterns are familiar, the causes usually straightforward and yet the impact, if unaddressed, is often significant.

1. Agency Trading Status
There’s often confusion about whether an agency is acting as an agent ie. buying on the brand’s behalf, or as a principal, reselling inventory. That difference has material implications: on control, on transparency, and on price.

But many contracts fail to specify the arrangement clearly. The result is a relationship that assumes one model while operating under another, with the brand left exposed if value, governance, or trust starts to erode.

2. AI Use and Disclosure
AI tools are now embedded in many areas of agency delivery, from media optimisation to content development. That isn’t inherently an issue. But if those tools are making decisions using brand-owned data, or if the outputs affect performance without client visibility, it becomes a matter of accountability.

A lack of contractual definition around AI doesn’t just create ambiguity, it creates risk around ownership, outcomes, and oversight.

3. Data Use and Audit Rights
Data governance often defaults to generic legal language. But marketing delivery involves multiple platforms, external tools, and often offshore teams.

Without defined audit rights, retention policies, and access terms, brands may find that campaign data is stored, shared, or monetised in ways that don’t align with their expectations, or their compliance obligations.

Contracts need to set those boundaries clearly, not assume best practice will fill the gaps.

4. Environmental, Social, and Governance (ESG) and Inclusion Expectations
Sustainability, representation, and safety are frequently highlighted in RFPs, but rarely formalised in contract terms.

That creates a credibility gap: the expectations expressed at pitch stage lose traction in delivery because there’s no operational structure behind them.

If ESG matters to a brand, and increasingly it does, then the contract should reflect what’s expected, what’s measurable, and who’s accountable. Anything less risks reducing important commitments to soft signalling.

5. Commercial Transparency and Value Retention
Even in fee-based models, there are often additional layers: rebates, tech mark-ups, bundled media, or post-campaign “value pots”. (retained earnings or incentives accrued by the agency or holding group, typically outside of the core fee model and not always transparently shared).

Without clarity on how value is defined and distributed, brands can find themselves unsure where their money is going, or whether it’s working as hard as intended.

This isn’t about assuming bad practice. It’s about ensuring the commercial structure is visible, fair, and aligned with agreed objectives.

Structuring for Reality, Not for Disputes

The most effective contracts I’ve seen don’t try to guard against every possible failure. They focus on setting the right foundation for delivery. They reflect how the relationship is intended to work, day to day, not just how it will be resolved if it breaks.

That means clarity on process, on governance, on who’s responsible for what, and on how change will be managed.

This isn’t about adding length or legal complexity. It’s about making the contract useful. Most issues don’t stem from a lack of goodwill. They stem from different interpretations of scope, timing, data ownership, or success.

If those aren’t explicit, ambiguity takes over and ambiguity rarely works in the brand’s favour.

Comclusion
Where marketing spend is material and the work is high-stakes, the contract shouldn’t be an afterthought. It should be an enabler, a practical foundation that supports pace, trust, and delivery over time.

The pitch sets the ambition. But the contract is where that ambition gets structured. And if what’s agreed isn’t written down clearly, it’s unlikely to hold when it matters.

About the author

Andrew Livingston is a marketing and media consultant with over two decades of experience across agency leadership and client advisory.

He’s led pitches, built teams, and worked closely with brand-side decision-makers to help them get more value and alignment from their agency relationships.

As a former leader of agencies in the UK and APAC, he brings a global perspective on how those relationships succeed or fail.

Through his consultancy, Mosaic, he now helps advertisers choose, contract and collaborate with agencies more effectively, with a focus on fit, transparency and long-term performance.