CELB Reports: Yankees Consider Non-Disparagement Clause
Daniel Schwartz’s Connecticut Employment Law Blog, which often has interesting, thought-provoking posts, reports that the New York Yankees have considered adding non-disparagement clauses in future contracts for managers and coaches (“Yankees Mull Non-Disparagement Clauses, but What Does One Look Like?”). Of course, the Yankees’ thinking was obviously a reaction to the Joe Torre book that has received recent media attention. CELB provides some examples of what a non-disparagement clause, in an employment or a severance agreement, might look like.
Here are the thoughts (or questions that popped into my mind: truth is a defense to a claim of defamation, is it also a defense to a claim of disparagement? Is one free to publish disparaging truths? Is there such a thing as a qualified privilege to disparage if the disparaging comments were published in the course of managerial duties?
Especially intriguing: the mutual non-disparagement clause. That would preclude bad references (but an easier approach would be to limit disclosure to confirmation of employment and dates of service). Can you commit disparagement by simply commenting publicly that your new shortstop (or sales manager) is a whole lot better than your old one? Or, by saying that a pitcher (or technology officer) is simply getting old?
Going beyond CELB’s discussion of what a disparagement clause looks like, I’m wondering what disparagement litigation looks like. It is obviously a breach of contract action. But, that leaves open the question of what constitutes disparagement.
For our blog readers, we would counsel to stay away from non-disparagement (but not necessarily confidentiality, non-compete or non-disclosure) clauses unless the circumstances make it absolutely necessary. High profile organizations with ample resources, like the Yankees, might have to consider them. But, in most other circumstances, interpretation and enforcement would seem to be a bigger problem than the disparagement itself.
