Last month, we talked about the potential conflicts of interest raised by the New York Mets hiring former CAA super agent Brodie Van Wagenen, who used to represent several high-profile Mets, as their new General Manager. Since then, we’ve gained additional information regarding the terms of Van Wagenen’s contract and how he and the Mets have attempted to address those conflict of interest concerns.
It’s worth noting that at the outset, the Mets didn’t offer a terribly specific answer to the question of how Van Wagenen had avoided breaching the fiduciary duty he owed to clients like Jacob deGrom and Yoenis Cespedes (among several others) when he accepted the Mets’ GM job. The day after my initial piece on the subject, John Delcos noted for Forbes that reporters asked Van Wagenen about the conflict of interest.
That was the subject of one of the first questions asked of him this afternoon, and before Van Wagenen could answer, Wilpon interrupted and said he had spoken with the commissioner’s office and Major League Players Association chief Tony Clark, adding, “We have provisions in Brodie’s contract to deal with any conflicts of interest.”
What those provisions are, neither Wilpon nor Van Wagenen would say. Van Wagenen, who, as expected, appeared polished and highly professional, said, ‘The goals between players and management are more in line than people think.'”
That answer doesn’t adequately address the issues attendant with Van Wagenen’s hiring. As I explained on Flipping Bats and Winning Games, agents have knowledge teams don’t, ranging from players’ medical conditions to their desired salaries. And even if players and management were to have similar goals, they’re still adverse negotiating parties. When we found out more about the contractual provisions that addressed conflicts, the details also left something to be desired. Per the New York Post:
Though he is no longer their agent, the 44-year-old is privy to information regarding his former clients that could give the Mets an advantage over a player. And that could also include negotiations for a long-term deal, because Van Wagenen might know their final asking price.
“We didn’t discuss specifics on any one player like that,’’ Wilpon said of deGrom’s future. “I think [deGrom] is to be determined and Brodie is going to have to recuse himself from some of those discussions. He will have to set an overall tone for the organization, which way he wants us to go, and then we’ll have to have some others be responsible for doing the actual contract.”
There are two problems with this approach. First, remember that, as we discussed last time, Van Wagenen was legally required to obtain a waiver of conflict of interest, with informed consent, from each player separately. Based on Jeff Wilpon’s comments, that didn’t happen. We do know that Van Wagenen kept his clients informed.
Van Wagenen said he discussed the move with clients, including deGrom, as it progressed. Said he would like to keep him for a long time.
Wilpon said the Mets have "money put aside" to improve parts of the team, such as player development and analytics departments.
— James Wagner (@ByJamesWagner) October 30, 2018
But based on the available reporting, it appears unlikely those conversations included informed consent waivers. For instance, Jacob deGrom told MLB.com that Van Wagenen’s “transition was ‘a little confusing,’ adding that he’s still trying to ‘wrap my head around it.'” And deGrom told the New York Post that “I don’t really know how to feel” about the “conflict-of-interest stuff.” MLB.com relays a conversation between the two that illustrates just how confusing this can get.
Shortly after Van Wagenen became GM, divesting himself of all interests in CAA and forfeiting the chance to represent deGrom in contract negotiations, he chatted again on the phone with his ex-client.
“Have you talked to my agent?” deGrom recalled asking him.
“I don’t know who that is,” Van Wagenen deadpanned.
“Yeah, me neither,” deGrom said, laughing.
For now, deGrom is still working out that detail, as he tries to determine how Van Wagenen’s move to the Mets’ front office might affect him.
That doesn’t sound like someone who provided informed consent for Van Wagenen’s new job, and there have been no reports confirming that deGrom – or any of Van Wagenen’s other ex-clients – signed any such written waivers.
Now, Van Wagenen did say that he would recuse himself from dealings with his former clients, which is good. But Wilpon suggested something else.
“The GM gives some guidance, but he’s not totally involved with every last detail,” Wilpon said. “[Van Wagenen] can give us direction. He just can’t be involved in the negotiation. Is it something we are worried about? No. We gave it a lot of thought and obviously I went through the process of making sure that everybody was OK with doing this kind of arrangement, of bringing an agent in to our side.”
For legal purposes, if Van Wagenen is providing “guidance” or “direction,” it really doesn’t matter if he is or isn’t in the room for negotiations. A true recusal would require him to have nothing whatsoever to do with his former clients’ contract negotiations. Direction and guidance creates the possibility – or at least the appearance – that he could disclose private information to those doing the negotiating. Avoiding that possibility would require the Mets’ General Manager to be absent from dealings regarding the Mets’ biggest stars, which creates a host of practical problems, as Phil Mushnick correctly notes.
Exactly how is that going to work? When, for example, deGrom’s future is discussed and determined, Van Wagenen will leave the room or, to be extra cautious, leave the country? Or will that determination be a quick process completed while the new GM, with no say whatsoever, is out to lunch?
His input won’t be solicited, known, weighed or, at the very least, fully suspected? Or are we to believe that the Mets hired a GM whom they’ll gag and handcuff when it’s time to make big decisions? Van Wagenen seems too smart to not know better. But we’re not?
So far, we haven’t seen Van Wagenen recuse himself from Noah Syndergaard trade talks, even though he represented the ace right-hander before taking the Mets job. And Van Wagenen raised eyebrows when he said that ex-client Tim Tebow, who this year posted a 106 wRC+ (along with a 34.6% strikeout rate and an unsustainable .418 BABIP) in Double-A, would nevertheless get promoted to start the 2019 season.
““I reject the notion that I’m going to be in a conflict of interest now or that I’m going to compromise my own reputation, past behavior and my own integrity,” Van Wagenen said to the New York Times‘ James Wagner. But that’s sort of the problem – Van Wagenen doesn’t appear to give the possibility of conflicts of interest its due consideration. And there are potential issues on the other side of trades, too. As Wagner notes: “Some G.M.’s may be leery of what inside information Van Wagenen has if he, say, offers a Met who is a former client of his in a trade.”
So the concerns now go beyond internal conflicts of interest. Can Brodie Van Wagenen run the Mets as he needs to with such significant limitations? Or will he circumvent those limitations in order to get the best deals for his team? At this point, we just don’t know. It would be a relatively simple fix, too; if the parties did follow the law, they could confirm they had written conflict waivers from all involved. But the fact that the Mets and Van Wagenen have allowed the situation to percolate suggests they may not have taken that step – and now, for better or worse, every move Van Wagenen makes will be viewed through that lens moving forward.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.