Elegant variation

Note the highlighted words:

The license agreement does not include or reference a noncompete agreement. If the license agreement did include a covenant prohibiting competition, special attention would need to be paid to the drafting of that provision . . ."

This is classic elegant variation (I've posted about it here), and it actually confused me for a split second when I read it. I was not sure that a covenant prohibiting competition was the same things as a noncompete agreement.

Many experts condemn elegant variation. Are they right?