This past Sunday, approximately 37 million viewers tuned in to watch what might have been the last NFL Playoff showdown between arguably the two greatest quarterbacks of this generation, thereby making the New England Patriots loss to the Denver Broncos the most-watched AFC Championship game in the past 29 years. Only the 1986 AFC Championship between the Broncos and Cleveland Browns – familiarly known as “The Drive” – has garnered more viewers in recent memory.
While most of this massive audience watched with the intent of discovering whether Peyton Manning had enough gas left in the tank from his injury-riddled season to defeat the heavily-favored Patriots for what many consider his last chance at a second Super Bowl ring, a vast segment of the same audience probably were too distracted by what appeared to be an ongoing advertisement for Apple’s iPad Pro – or any other tablet for that matter not designed by Microsoft.
Early in the second quarter, the CBS sideline team reported that the Patriots lost access to their Microsoft Surface Tablets, which are used by offensive and defensive coordinators to review past drives and other in-game action with players on the sideline while they wait to return to the filed:
Once social media received word that Microsoft’s Surface Tablets were malfunctioning yet again, a new hash tag – #TabletGate – was formed, commemorating some of the best reactions to this not-so-surprising, yet unanticipated, turn of events:
— Rob Perezingis (@World_Wide_Wob) January 24, 2016
— Jeff Rosen (@jeff_rosen88) January 24, 2016
— Mel The Canadian (@AngeredCanadian) January 24, 2016
Even though Microsoft released a statement addressing the issue and clarifying that it was a network error, and not one having anything to do with the product itself, not surprisingly, everyone and their friend appeared to have an opinion regarding #TabletGate. However, the one entity (the NFL) who many believe has reached the end of its rope regarding the multiple issues Surface Tablets have created has remained hush regarding the situation. What gives? Well, based on the partnership deal entered into with Microsoft in 2013, it can be assumed that the NFL has $400 million reasons to refrain from speaking negatively about –or “disparaging” – Microsoft or its products.
What Is Non-Disparagement?
The Oxford Dictionary defines “disparagement” as to “regard or represent as being of little worth.” In other words, it means to talk poorly about – and essentially discredit – another in the eyes of the listener, and this is the definition used by courts in determining whether one is guilty of such act. Generally speaking, those entering into contractual relationships where one party serves as a spokesperson or authorized representative of the other are cautious to ensure that the representing party is prevented from speaking unfavorably about whatever it is that person is endorsing or acting on behalf of. In order to do so, agreements signifying these relationships include what commonly is referred to as a “non-disparagement” clause. A typical non-disparagement clause reads as follows:
Neither party shall, directly or indirectly, criticize, disparage, demean, impugn the honesty, integrity, or character, or speak poorly or negatively about the other, or the other party’s related entities, affiliates, officers, directors, employees, agents, representatives, business operations, products, or services in public communications (written or verbal) in any form, manner, or media, now known or hereafter created, throughout the Term of the Agreement and thereafter.
Additionally, non-disparagement clause are typically included in employment agreements so that the employer has the ability to prohibit employees from speaking poorly about the organization and negatively impacting its business. This basis also serves as the reason behind why this clause is sometimes found in other contracts, such as brand ambassador, sponsorship, or exclusive licensing deals, similar to the one entered into between the NFL and Microsoft.
The NFL’s Deal With Microsoft
In 2013, the NFL signed a 5-year, $400 million exclusive advertising and equipment agreement with Microsoft. With that deal, Microsoft received the right to be named “The Official Sideline Technology Sponsor of the NFL,” and the Surface became known as the “official tablet” of the league.
In addition to the exclusive rights granted and other duties and obligations created as result of entering into this partnership, based on the notion the NFL never appears to have a bad word to say whenever a mishap occurs involving Microsoft or its products – even though many believe Microsoft continues to give the league every right to do so – it can be assumed that the contract includes a clause similar to that shown above, thus preventing either side from talking negatively about the other to the media or public.
Additionally, as seen in the example above, non-disparagement clauses may also extend after the natural expiration or termination of the agreement, thereby prohibiting either side from demeaning the other even after they are no longer in a contractual relationship. As a result, we may never know whether the NFL sides with its individual teams in questioning the reliability of Surface Tablets.
First Amendment Defense?
In the event the NFL has one disgruntled staffer looking to put Microsoft on blast for making his or her job more difficult due to constant Surface breakdowns, the First Amendment does not allow him or her to do so. Those familiar with the United States Constitution may note that the First Amendment protects freedom of speech and prohibits acts of prior restraint, which is defined as censorship on expressions prior to the expression actually taking place. While prohibiting the NFL’s ability to talk negatively about Surface tablets prior to the NFL actually doing so appears to fall under such category, in order to have a violation of a constitutional right, there must be state action.
[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””] In order to have a violation of a constitutional right, there must be state (government) action. [/pullquote]
In other words, the government must be the one prohibiting the NFL from discussing the Surface’s inadequacies. Absent state action in some form or capacity, the right of free speech does not extend to private relationships or settings. Furthermore, parties entering into an agreement are free to contract away, and effectively waive, their right to free speech, so long as they do so knowingly, willingly, and voluntarily. Thus, because the NFL and Microsoft are two private parties who freely entered into an agreement, the terms of the contract govern their relationship, and will be enforced based on the language contained therein.
So assuming the exclusive deal entered into by NFL and Microsoft contains a non-disparagement clause, the NFL will most likely never receive its day in the court of public opinion to express its true feelings regarding its Microsoft Surface experience. However, the following isn’t a bad exchange:
Microsoft pays the NFL $80 million a year for the Surface tablet deal.
— Darren Rovell (@darrenrovell) January 24, 2016
And while Microsoft may feel a negative impact on sales of Surface tablets due to the events that affected the Patriots this past weekend (I assume every New England fan rushed to his or her nearest electronics store to purchase a competing tablet for pure vengeance reasons), it surely won’t be for lack of coverage:
Good or bad, 'Surface' (Microsoft Surface) is now trending in the U.S. on Twitter #NEvsDEN
— Mark J. Burns (@markjburns88) January 24, 2016
Silver Lining: at least the announcers got the name right this time!