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Sunday, January 17, 2010

Discussion of the Bengals loyalty clause

Below is an article I wrote back in 2003 concerning the Bengals loyalty clause we recently discussed in class.

POSTED MAY 21, 2003

Recently, media reports have been breathlessly reporting the utilization by the Cincinnati Bengals of language in the signing bonus of the Carson Palmer contract that penalizes Palmer if he makes disparaging comments about the Bengals club, its coaches or management. As readers of this column know, I previously had discussed this “loyalty clause” provision in regard to previous Cincinnati draftee and veteran contracts. Generally, violation of the provisions by the player will result in the club being able to recover a portion of the signing bonus paid to the player when he signed his contract. Since the clause is once again making the news, a revisit of its intricacies follows.

Of concern to the players and agents concerning the loyalty clause (which has been upheld as being valid after the NFLPA filed a grievance against its validity) is the lack of the specificity of the loyalty clause language and how unintended comments by the player could be construed to be a violation of the clause.

The original version of the clause, which appears in at least one player contract, is as follows:

"If player makes any public comment to the media, including but not limited to the newspaper, magazines, television, radio or Internet that is derogatory or critical of club, club coaches, or club management, player shall forfeit and shall immediately return and refund to the club that amount of bonus herein provided." (emphasis added)

Several issues arise from some of the words of this clause which could cause misinterpretation of the provisions, including the following:

1. "Public Comment." Player makes a remark to a teammate in locker room that his position coach is "not organized." The comment is overheard by a reporter and printed in paper the next day. Is this a public comment made to the media (violation) or a personal comment to a teammate (not violative)? If it is a public comment to media, is it derogatory and/or critical (violation) or merely an observation (no violation)?

2. "To Media." Player, in the middle of the game, gets into argument with a coach and the dispute is seen by the television audience; player tells coach that "we stink and I am tired of it." Even though comments are between player and coach, does the fact that media shows it and then later discusses in greater detail violate the loyalty clause language (i.e., critical comments about club)?

3. "Derogatory or Critical." Player makes remarks during a post-game news conference that “the club’s offense is bad,” the club’s “coaching staff and players were not prepared,” “the cheerleaders are ugly,” and that the player himself "stunk." Note, per the loyalty clause, all of these comments could be interpreted as critical or derogatory, even though they are true. The lack of definitiveness in the contract language in what constitutes "critical" or "derogatory" leaves the club the opportunity to take an aggressive position in enforcement of the clause.
4. "Club, Club Coaches, or Management." As noted earlier, the term "club" is very broad; it can include the player himself, teammates, the ticket takers, parking attendants, trainers and even the guys who wash the jockstraps ("they shrunk my jock, those idiots"). Even though the comment about the club, coaches or management has to be a public comment to the media, no exception is provided in the language for comments made by the player directly to the offended individual which is heard by the media, or comments that may be made after a team official retires, is fired or becomes deceased ("you know. I’m glad the club fired Coach Blow after we went 1 and 15 - - he was terrible").

5. "Forfeit and Immediately Return." Player violates clause but does not have money; what is recourse of club (sue?)? Player makes the remarks about club official after player is traded, released, and/or retires from club - - is provision valid? Player makes a derogatory remark to media 15 years after retirement when the Bengals do not invite him to oldtimers day - - can club seek return of signing bonus? Also note that this provision does not put burden on the club to provide notice to player that he has violated the clause; thus, player under these provisions is responsible to determine whether he violated the clause.

6. "That Amount of Bonus." Several of the contracts signed by Bengal players mandate that the player must return a percentage of the bonus based on the year of the contract in which the violation occurs. Thus, if violation occurs in the last week of year one of a 4 year deal, player has to return 100% of signing bonus; if the violation occurs in year two of 4 year deal, 50% is returned. A more equitable formula would be to define the refund amount via a formula involving the total number of regular season games over the entire contract period and the number of games that the player has played before the breach has occurred [example: if player violates clause after 16th game of 4 year (total of 64 games) contract he would have to return 16/64 or one-fourth of signing bonus, not 100% as is the case in existing Bengals language].

There have been several alternative versions of the loyalty clause used by the Bengals. One version (the terms differing from the beforementioned version are noted by underlining) is as follows:

"…if Player makes any public comment to the media, including but not limited to the newspaper, magazines, television, radio, or Internet that breaches Player's obligation of loyalty to Club and/or undermines the public's respect for the Club, Club coaches, or Club management under Paragraph 2 of the NFL Player Contract and Article LV, Section 6 of the Collective Bargaining Agreement (any of the above shall be referred to as a "Voluntary Breach or Failure to Perform"), upon demand of Club, Player shall forfeit and immediately return and refund to Club that amount of bonus herein provided as follows: [Contract then stated a formula that if player violates in first year of contract, 100% of bonus returned, if in second year of 3 year deal, then 67% returned and if in last year 33% of bonus refunded]."

Notwithstanding the modified wording, this alternate provision is as indefinite and confusing as the original provision used by the Bengals. How do you ascertain the "obligation of loyalty" of the player to Club? How do you determine (by poll, referendum?) if the comments of the player undermine the "public" (define "public": in Cincinnati, the U.S. and/or Congo?) Is “respect” interpreted as the public liking the team and/or individual coaches/management personnel or just tolerating them? The references to paragraph 2 of the NFL Player Contract (which section includes such definitive statements as the player "agrees to give his best efforts and loyalty to Club" - how is this determined? - and will conduct himself "with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game” –what?) is also very general and can be misconstrued. Section 6 of Article LV of the CBA includes such helpful language as "best efforts," "express criticism" and comments "which tend to cast discredit upon a Club, a player or any other person involved in the operation of a Club” (i.e., includes guy who handles ticket requests or person who lines the practice field?).

The position of the Bengals in implementing the loyalty clause language is that they are justified in its usage so they can suppress outrageous and disruptive comments of players toward the club, its coaches and management. Since an arbitrator has upheld the validity of the clause for player contracts, it’s only a matter of time before more teams attempt to adopt loyalty clause provisions in their particular player contracts.