Most people fired have a choice word or two about their former employers. It was therefore not surprising that former Yahoo CEO Carol Bartz wanted to let off some steam after she was canned. The legal question is whether it was worth $10 million to Bartz because that is how much it could cost under a standard clause in her contract. She may now have to put her money where he mouth is.
In an interview with Fortune Magazine, Bartz has referred to the Board that fired her. She said that “These people f*ck*d me over” and called them “doofuses.”
Bartz was only the CEO for a couple of years but her contract had a non-disparagement clause and there remains $10 million outstanding — $10 million controlled by those “doofuses.”
In response to the comments, Bartz was then told to resign from the board.
Such clauses are enforced, though usually for more substantive breaches in commercial settings. Last year, an Ohio court in the opinion below in Ohio Education Assn. v. Lopez looked at the type of case that is viewed as a violation but de minimus. When Lopez was let go by the Ohio Education Association, his severance agreement contained a non-disparagement clause stating “Employee further agrees not to at any time disparage, defame, or otherwise derogate Employer’s Officers, Executive, Committee Members, employees or agents.” Lopez however could not resist leaving a voicemail for the association’s counsel:
Davey, you never call me anymore. This is el jeffe. Call me sometime. I’m all settled with the OEA so you don’t have to worry about this gag order and all this s___ that slimebag Reardon said to you. So call me…. Bye.
Not real smart to bad mouth the association to its lawyer after agreeing to a non-disparagement clause. Yet, the court found it de minimus:
Here, the purpose of the separation agreement was to end the employment relationship and resolve all disputes. The nondisparagement provision was a negotiated term of the agreement. The provision OEA alleged Lopez breached uses the terms “disparage, defame, or otherwise derogate.” All of these terms connote harming a person’s reputation or causing one to seem inferior. The term “slimebag” is a common slang expression meaning “[a] despicable person, usually a male.” McGraw-Hill Dictionary of American Slang and Colloquial Expressions (4th ed.2006), 323…. This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded…. [T]he slang expression is such a part of modern casual speech as to be almost meaningless. OEA could not demonstrate that the message caused any damage to OEA or Reardon.
Bartz could argue that the name of the company itself is disparaging. Yahoo is defined as “a stupid person.” Like Yahoo, doofus is defined as “a foolish or inept person.” While she would have been better off calling them “a bunch of yahoos,” the word doofus is believed to have originated from the term “goofus” which is in turn based on the word “goof,” which is believed to be a variation of “goff” in an English dialect for simpleton.
Of course, only a simpleton would risk $10 million to called someone a doofus.