Take the high road, New York

I’ve had about as much fun with the Joe Torre book as anyone, but this is profoundly stupid:

The Yankees are considering including a “non-disparagement clause” in future player and managerial contracts in order to prevent any more tell-all books such as “The Yankee Years,” co-written by Joe Torre and Tom Verducci.

Speaking on the condition of anonymity, a Yankee official said yesterday that some members of the front office staff already are required to sign a confidentiality agreement in order to protect “proprietary knowledge of our business model.” The proposed clause is intended to ensure that future books about the Yankees are “positive in tone,” and “do not breach the sanctity of our clubhouse.”

There’s a big difference between confidentiality regarding trade secrets and proprietary information on the one hand and a simple “don’t say bad things about us after you’re gone” requirement on the other. The former is necessary to keep a going concern going. The latter is simple P.R. control and the stifling of free expression. Which, because the Yankees aren’t the government is legal of course, but which is a dumb move all the same.

Why? Because The very existence of non-disparagement clauses — assuming they’re public, as any involving the Yankees now would be — would do more to harm the team than help it. It sends a signal to the public that the team has more embarrassing secrets to hide than whatever it is Torre is going on about, and will lead to more uninformed, lurid speculation among the fans and the press than already exists. Torre’s book may not be popular with the Yankees’ brass right now, but in many ways it constitutes a necessary blood-letting. If he and the 1995-present Yankees were gagged for life, all manner of gossip and innuendo would go unchecked. Instead of that blood-letting you’d get death by a thousand anonymous cuts.

Even worse is that the existence of non-disparagement clauses often serve to magnify, rather than minimize the damage some bad press can cause. Let’s say five years from now Jorge Posada is speaking at a luncheon and makes some intemperate remark about Derek Jeter’s personal hygiene. As it stands today, there would probably be a brief blurb about it in the New York tabloids, and then it would go away and join all of the other fun junk in Yankees’ history. If Posada was subject to a non-disparagement clause, however, the Yankees would have to sue for damages. This would serve to magnify the issue of Derek Jeter’s hygiene by a factor of about a billion, because now the matter would have to be litigated. It would also place the team in the unenviable position of going after a guy who is a minor hero in the minds of Yankees fans. And if you say “no, the Yankees would never sue Posada,” than what’s the bloody point of having a non-disparagement clause anyway?

Also, let us not discount the chilling effect such a clause would have on potential future Yankees. Sure, at some point player X is going to sign with New York if there is enough money on the table, but what of players Y and Z? Maybe Y and Z fancy a future in broadcasting. How would FOX or ESPN feel about hiring Y or Z if they knew beforehand that they’d never be able to share stories about their Yankees days lest they be sued for disparaging the ballclub? If I were them I’d pass on Y and Z and hire the ex-Met instead.

Finally, let us remember that if the Yankees had non-disparagement clauses in the 60s, we never would have had Ball Four, so that’s reason enough to be against the idea.

If I were Brian Cashman, the Steinbrenners, Alex Rodriguez or Johnny Damon, I’d be pretty steamed at Joe Torre this week. I’d have the sense to realize, however, that the best way to fight bad press is to either ignore it or to fight it with good press as opposed to litigating the matter or stifling the speech of my future teammates and coworkers.

The best revenge is living well, New York. Let Torre have his week of publicity, and then go out and win 100 games and the World Series without him. Then, in a couple of years, write a book speculating why Joe Torre couldn’t win a World Series for the final seven years at the helm.

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13 years ago

This type of stuff goes on in all clubhouses (heck, it goes on in all workplaces) and I don’t think that I’ve seen a single press report that’s lost sight of that. So what exactly are the Yankees whining about here?

Jason @ IIATMS
13 years ago

I guess after Ball Four, The Bronx Zoo, Boomer’s book and who knows how many other “enlightening” tomes, the Yanks have finally had enough.

13 years ago

I think that this clause is probably a bad idea, but nothing you write here strikes me as very convincing. 

The first worry “sending a signal” (whatever that means) is rather weak brew—what would “sending a symbol” actually cost the Yankees?  Speculation in the press and amongst the fans is a fact of life for the Yankees and would occur whether or not these clauses exist.

The other worries are built upon the premise that the Yankees would actually sue over offhand comments made by ex-team personnel.  Does that seem plausible?  I don’t think so. 

Probably the Yankees would see this clause as a way to discourage future books like Torre’s.  The chance that the abstract possibility of writing a tell-all book some time in the future would loom large in any free agent’s decision-making process seems remote.  Off hand, the only player who comes to mind for whom this would be a factor would be a freak like Curt Schilling and he is the exception that proves the rule.

Craig Calcaterra
13 years ago

“The other worries are built upon the premise that the Yankees would actually sue over offhand comments made by ex-team personnel.  Does that seem plausible?  I don’t think so.”

There is no point to inserting non-disparagement clauses in contracts if they won’t be exercised. In fact, if they have them and routinely refuse to exercise them, they’ll be far more vulnerable to attack if and when they truly feel they need it (say, for the next tell-all book).

Craig Birkemeier
13 years ago

After the way Carl Pickens and Corey Dillon bad-mouthed them, the Bengals started doing this. Let’s just say that it hasn’t exactly made their bad press go away. Different circumstances? Sure, but I completely agree that non-disparagement clauses aren’t good ideas.

13 years ago

Wouldn’t they have a possible legal issue with that anyway? I haven’t had any reason to study this particularly, but my impression is that agreements that restrict former employees’ future freedoms like that are generally held to pretty strict reasonableness standards. It’s hard to argue that a provision like that would be necessary to protect their property or bottom line or anything.

13 years ago

“There is no point to inserting non-disparagement clauses in contracts if they won’t be exercised.”

Sure there is.  The goal of these clauses would be to prevent tell-all books from being written, not to collect damages when they are written.  The clauses change incentive structures.  They provide a (possibly slight) disincentive for writing a book. 

I’ll give you an example: the Yankees hear that an ex-player is writing a book.  They have their lawyers write a letter to said player reminding him of the clause.  Looking at a possible legal battle is going to make the $1-2 million a player could earn from the book less appealing.  It would make the acquisition of the book by a publisher look less appealing….The book probably dies.

Aaron Moreno
13 years ago

That only works if you then sue them the times the ex-Yankee goes ahead with a book. If you don’t, you’ve lost credibility, and the floodgates open. So if you have the clause, you’re still obligated to enforce it.

13 years ago

The Yankees are forgetting one of the fundamental laws of the game: All publicity is good publicity. Speaking purely in terms of dollars and cents, did “Ball Four” hurt the Yankees? Did the Bronx Zoo? Did George Steinbrenner’s very public battles with players and managers? How, exactly, does the Torre publicity hurt the franchise?

To take an even more extreme example from another sport, doesn’t it help the Dallas Cowboys that they are constantly in the football spotlight—even when they’re not in the playoffs? They are the most visible franchise in the NFL, and (not coincidentally) the most valuable piece of real estate in American sports.

Let’s say the Yankees have their way from now on: no bad publicity, no off-the-cuff slams, no tell-all books. Happy faces all around. Dull, dull, dull. It’d mean a whole lot less presence on the back pages of the tabloids, and a lot less public discussion and interest in the team. For purely business reasons, the Yankees would be smart to rethink this idea.

Richard in Dallas
13 years ago

The way I see it, it does two things:

1) It gives the Yankees (or any other organization that employs this tactic)absolutely free reign to crap all over their employees in any legal but not necessarily moral or ethical way they want to.

2) When knowledge of item number 1 becomes common knowledge in the baseball community, it will dissuade anybody worth having from signing with the Yankees for ANY amount. Would you rather make $6 million for playing in a nice environment for nice people or $10 million playing for Satan in Hell? 

Having grown up a Mets fan, and currently cheering for my sad sack Texas Rangers, I say go ahead and do it!  That will leave all the talent that matters to play for teams that aren’t hell-bent on signing the big stars for ridiculous sums and in the process destroying the game I love so much……..

13 years ago

To me it appears the Yankees want publicity if it sells the Yankee mystique and lots of merchandise but not anything that could look bad.  I can certainly understand that but it seems a wee bit hypocritical as publicitiy is truly a double edged sword, just ask all those Hollywood folk about the paparazzi. 

The folks behind the camera aren’t so bad at the red carpet event or when a project needs to be marketed but certainly are invasive when showing them in less than pleasant light.  Granted some members of the paparazzi go too far and invading someone privacy is never acceptable but the photo of a celeb eating a greasy hamburger after pimping Jenny Craig may be unflattering but falls into the ‘live by the press die by the press’ category.

What I find curious is how the Yankee may be seen by potential employees and free agents as this is not the first time they have treaded down this type of path.  We can all recall their exploring the possibility of terminating Giambi’s contract when he appeared to be a cheat who used PEDs.  Of course that talk stop after he got on one of his streaks and starting winning some games with his bat – their moral outrage seemed to diminish significanty with the rise in his OBP.
Also I believe it was in 2004 that they terminated Aaron Boone’s contract after he tore his ACL playing offseason basketball.  Of course I also believe this occured after A-Rod was brought in to play third and while Boone was out for a period in recovery he certainly was not necessary anymore. 

I wonder if such actions and their current desire to silence folks will have any affect on their ability to bring in talented folks to the front office or the ball field.  Obviously CC and Texiera were scared away but maybe some others will be – just a thought.

Charles Kitchen
13 years ago

How will it work for a prospect drafted by the Yankees?

Does he get to say “No thanks” when they call him up?

Richard in Dallas
13 years ago

He does get to say no, as my son will if he happens to fall to the Yanks when the day comes, but he must then wait until next year’s draft and then hope he doesn’t fall to the Yanks again (which he probably won’t, since the Evil Empire will not want to waste ANOTHER pick). At least that’s my understanding of the simplified version…

Brad in Chicago
13 years ago

As an admitted Yankee hater this signifies the arrogance of the Yankees and is one of the reason why so many people hold the New York American League Ball Club in such low esteem.  Why is it that the Yankees and their fans feel that nobody can ever say anything negative about them?  Why???