With the Super Bowl over, there are many in Connecticut who would love to start paying attention to baseball (after all, pitchers and catchers report to spring training in about two weeks).
Fortunately, there’s been plenty of drama for New York Yankees fans this week with the release of former manager Joe Torre’s new book, The Yankees Years. It has been marketed as being somewhat controversial, though the reviews of the book have indicated that it is fairly tame as memoirs go.
Nevertheless, the kerfuffle regarding the book has led to the Yankees mulling some type of confidentiality or non-disparagement clause in future contracts of managers and coaches (see reports here, here and here.) Such restrictions would probably not be applied to players because the union would likely object to such clauses.
This, of course, raises several questions, including: What does such a clause look like? The clauses are not uncommon in severance or separation agreements (though not necessarily routine), but less so with employment agreements. The Footnoted blog reprints contracts that have been filed with the SEC as does a website called OneCLE. You can use these site to get ideas of clauses or language that can be used for various employment or separation agreements.
As for the non-disparagement clauses, there are a few examples you can find on these sites. One such agreement states:
Employee agrees (whether during or after Employee’s employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Released Parties.
Another agreement, is a bit more thorough and states:
Non-Disparagement. (a) You agree not to disparage or denigrate the Company or, subject to paragraph 10(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators.
(b) Notwithstanding the foregoing provisions of this paragraph, it shall not be a violation of this paragraph 10: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer.
Are these types of provisions something that companies can consider? Sure, but as with all types of provisions, employers should understand more about the clauses, about the enforceability of such clauses and about why they might need or not need such clauses. And certainly the language should be tailored to the particular company’s situation. (As always, seeking some type of legal guidance is recommended before implementing changes to any agreements that a company may use.)