In watching the Summer Olympic Games, I realized that there are only a few sports that have rules in place for temporarily removing a player after committing a violation. Water polo allows the official to remove a player, creating a “man down” advantage for the opposing team. Lacrosse is similar. During winter, in ice hockey, if a skater commits certain types of fouls, the official sends them to the penalty box for a measured time period. The opposing team has a “power play” opportunity to score.
Of course, in nearly every sport, there are rules that award sanctions against a player that violates the rules. In soccer, a single “red card” penalty can result in permanent removal (without substitution); in basketball, five or six fouls (depending on the level of play) can result in being expelled from a game. But why do only a few games have the “penalty box” concept?
Clearly, a “man down” creates advantages for the opposing team; in theory, the risk of these advantages being realized is intended to discourage the conduct.
Sometimes the threat of sanction is not enough; the player must be sat down for the officials to make their point that the rules will be enforced, and sanctions will be imposed. Those sanctions can be outcome determinative, such as additional goals being scored that change the final score.
But these “man down” and “penalty box” rules are fascinating. The rules allow the game to continue, with both teams still going for the win. Though sanctioned, the offending player has a chance to return to the game and re-engage in the competition. There is a synergy and inter-dependence of the game itself, and all of the participants, that is allowed to be sustained.
When drafting agreements, companies rarely consider introducing “penalty box” provisions for how to deal with violations of the rules. The contracts become playbooks for enabling the lawyers to have really big disputes after the relationship has been terminated. Rarely are the contracts authored to enable the game to go on, empowering everyone to continue to work toward the reason they are playing together in the first place.
But, in cloud services today, the game has changed. There are qualities of synergy, interdependence, and mutually shared objectives that transform how companies work with one another. Often, the dependence is so strong that it is difficult for the parties to just walk away, and leave the mess to the lawyers.
The next time you draft a contract for cloud services, consider using a “penalty box” concept. When someone does not follow the rules, sanctions may be appropriate, but they should be explicit, swift, certain, and allow everyone to get back to the game—working together to achieve new profits. Just like in water polo, lacrosse, or ice hockey, you need to trust that the continuation of the game is why everyone began doing business in the first place.