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Posted: Thursday January 29, 2009 4:23PM; Updated: Thursday January 29, 2009 4:25PM
Michael McCann Michael McCann >

Yankees' potential silence clauses could have broad effects on players

Story Highlights

If a player is traded, can he share inside information about an ex-teammate?

These clauses could dramatically influence relations between media and players

For ex-players who go into broadcasting, this could have a chilling effect

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Joe Torre
Yankees brass is upset about Joe Torre's new revealing book with Tom Verducci, The Yankee Years.

In the wake of Joe Torre and Tom Verducci's new book, The Yankee Years, Newsday reports that the New York Yankees may require non-disparagement clauses in future player and managerial contracts.

Non-disparagement agreements, sometimes referred to as "settlements for silence," are usually signed when an employee leaves an organization, such as after resignation, layoff or firing. Generally speaking, the employee agrees to not speak ill of the organization in exchange for some monetary benefit, such as an enhanced severance package. Should the employee violate the agreement, his or her former employer can sue the employee for breach of contract and seek appropriate financial damages. Similarly, the non-disparagement agreement often prevents the former employer from maligning the ex-employee.

Non-disparagement agreements are usually enforceable, since courts typically find that the parties have only agreed to the language because they believe they are better off with it. In other words, constitutional concerns about a person's freedom of speech would not apply. Conflicts can emerge, however, since non-disparagement agreements tend to be vaguely worded and can be difficult to apply in every imaginable circumstance.

The Yankees, it appears, would like non-disparagement language to be included in new contracts signed by players and managers. Depending upon the wording of any non-disparagement agreements, the consequences, particularly for players, could be sweeping.

For instance, if a player is traded to another team, would he be able to share "inside" and damaging information about a player on his previous team, such as the kinds of pitches that a particular batter struggles with or how to frustrate a particular pitcher on the mound? How would the line be drawn between non-disparagement and competition?

Non-disparagement agreements might also dramatically influence relations between media and players. They could, for instance, discourage players from offering candid responses to reporters' questions, either on or off the record. Granted, most players already stick to platitudes and canned answers, but non-disparagement agreements could inhibit the occasionally engaging player from offering his unique insight. For ex-players who seek to become broadcasters non-disparagement agreements may have a particularly chilling effect.

Another point to consider is that the enforceability of a non-disparagement agreement varies from state to state. Although non-disparagement agreements are generally accepted, many states nonetheless expect various forms of confidentiality agreements to be "reasonable," but they can differ as to how they define "reasonable." Other states consider more specific factors, such as how long an agreement lasts after the termination of an employment relationship between an employee and his or her employer. And some states appear to disfavor these types of agreements altogether. In other words, if other teams were to follow the Yankees in requiring non-disparagement agreements, some of those teams may struggle to enforce those agreements, depending upon the states in which those teams reside.

Also keep in mind that players and their agents would have to agree to the Yankees' demands for non-disparagement and the Major League Baseball Players Association would also have to approve of any such language. An agent could thus object to inclusion of a term of non-disparagement in a client's potential contract, and depending on how much the Yankees want the term, the agent and Yankees' management could bargain with one another over how to reach a comprise.

But maybe the Yankees and other teams not need demand non-disparagement agreements in player contracts. Although it would necessitate a creative, if not quixotic, reading to compel non-disparagement, Section 7(b)(1) of Article 3 of the Uniform Player's Contract empowers a team to void a contract if a player fails, refuses or neglects to "conform his personal conduct to the standards of good citizenship ..." Might the amorphously-worded "standard of good citizenship" include non-disparagement? The MLBPA would certainly disagree.

Alternatively, persons affiliated with the Yankees and other teams may already possess existing legal remedies for the protection of statements made in the clubhouse through the laws of defamation. Slander is the oral version of defamation, which also encompasses libel, or defamation by written or visualized material. Then again, to succeed in a defamation lawsuit, a team owner or employee would have to show that any statements made by the ex-player or ex-manager were untrue, injured the plaintiff's reputation and exposed the plaintiff to public ridicule -- a tall order indeed, particularly when the plaintiff is a public figure.

Along those lines, perhaps the easiest way to ensure that a player does not disparage a team and those affiliated with it would be for the owners and players to collectively bargain a new clause in the Uniform Player Contract that lays out workable parameters for non-disparagement. It would similarly make sense for managers and their agents to develop uniform language. legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

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