• Now that Padres GM A.J. Preller has been suspended, can the Red Sox seek compensation over San Diego’s failure to disclose the full medical record of Drew Pomeranz prior to his trade?
By Michael McCann
September 16, 2016

Major League Baseball has suspended San Diego Padres general manager A.J. Preller for 30 days, without pay, for directing Padres’ trainers to deprive other teams of critical information. Padres’ trainers were reportedly instructed to compile two distinct categories of player medical records. The first type consisted of complete information and was used for organizational purposes. The second type featured only partial information and was shared with other teams for player trade purposes. As a consequence of this practice, teams inquiring about Padres players were denied medical information that would have influenced what those teams offered in trade proposals.

The Red Sox were one such team. Dave Dombrowski, the Red Sox president of baseball operations, was unaware of an undisclosed health matter for Padres starting pitcher Drew Pomeranz (Fox Sports reports Pomeranz was taking an oral medication). The 27-year-old pitcher had intrigued Dombrowski after he compiled an 8–7 record with a 2.47 ERA to start the 2016 season. In July, Dombrowski traded highly coveted pitching prospect Anderson Espinoza for Pomeranz without knowing about Pomeranz’s health matter. 

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For Dombrowski, the Red Sox and their fans, Preller’s penalty may miss the point. 

In law, when one side fraudulently deceives another in a contract negotiation, the party harmed can later seek to rescind the contract and potentially be awarded damages. Not all forms of deception rise to fraud and sometimes deception only impacts unimportant matters. The Red Sox, however, can compellingly argue that the Padres’ failure to disclose influenced a central matter in any trade: a player’s health.

Understanding the harm to the Red Sox

A baseball player’s health is obviously an essential consideration in trade talks. Had Dombrowski received a complete picture of Pomeranz’s health, he would have assigned either the same or lesser value to Pomeranz. That’s not to say Dombrowski would not have traded for Pomeranz, but the terms of the Sox’s proposal may have been less generous. Perhaps Dombrowski would not have offered the organization’s top pitching prospect, or perhaps Dombrowski would have still offered Espinoza but demanded a Padres prospect to go along with Pomeranz.

Some might deny that the Red Sox were harmed. They could point out that Pomeranz is, by all accounts, healthy. He has not missed a start for the Sox. Plus, although Pomeranz’s 4.60 ERA over 11 starts for the Sox pales in comparison to his earlier season success, he slots in well behind aces David Price (16–8, 3.81 ERA) and Rick Porcello (20–4, 3.12 ERA) in the team’s rotation.

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Still others might focus on the fact that Espinoza has not excelled thus far in the Padres organization. He has a 1–3 record and 4.73 ERA for the Single A Fort Wayne Tin Caps. Those stats suggest the Red Sox might not have traded a future ace. 

Those points—Pomeranz’s apparent health and Espionza’s middling performance—might insinuate that Preller did not harm the Red Sox. The problem with that thinking is two-fold. First, it focuses only on the present and myopically assumes the present will continue. Pomeranz could encounter health problems during the remainder of his contract and those problems could be connected to the hidden medical condition for which he received treatment. Alternatively, Espinoza, who is only 18 years old, could overcome his struggles and become the ace scouts expect him to become. In other words, the current situations of Pomeranz and Espinoza could—and probably will—change, thereby impacting the results of this trade and the significance of the omitted health information.

Second, and more important, the harm suffered by the Red Sox occurred during the trade negotiations. What has happened since and what will happen hereafter do not cure that original harm. Dombrowski was clearly denied information relevant to his trade proposals. We know this information was significant as it prompted MLB to take the unusual step of suspending a general manager for 30 days.

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Preller’s punishment does not compensate the Red Sox for this harm

While MLB punishing Preller embarrasses Preller and the Padres, it does not remedy the Red Sox. Preller is an employee of another organization, which now avoids having to pay that employee for a month. The Red Sox are not receiving Preller’s forfeited pay and gain nothing by Preller missing a month’s salary. 

How MLB could remedy the Red Sox

So what sort of action would remedy the Red Sox? MLB commissioner Rob Manfred has total discretion and could, among other things, allow the Red Sox to rescind the trade. If the Sox exercised such an option, Espinosa would return to the Sox while Pomerenz would head back to the Padres. This remedy has been used in the past, most recently with the Padres. In July, the Padres traded pitcher Colin Rea and two other players to the Miami Marlins, who quickly discovered that Rea had a bad elbow. The Marlins then demanded the Padres take Rea back and the Padres agreed, with the Padres returning Louis Castillo, whom the Marlins had traded, to Miami.

The Red Sox, however, do not appear interested in rescinding the trade. As mentioned above, Pomeranz is a valuable starter for the 82–64 Sox, who, if the season ended today, would enter the playoffs as American League East champs. Removing Pomeranz from the rotation would require the Sox to start either Eduardo Rodriguez (2–7, 4.98 ERA) or Clay Bucholoz (6–10, 5.31 ERA) in the playoffs. While a case could be made that Rodriguez ought to start over Pomeranz, chances are Red Sox manager John Farrell would prefer Pomeranz, a veteran pitcher. Pomeranz, who is 27 years old, is also under the Sox control for the next two seasons, which makes him appealing to the Sox for the years ahead.

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Instead of allowing the Sox to rescind the trade, Manfred could require an additional exchange of players or funds. Perhaps the Padres must trade a prospect to the Red Sox or must pay the Sox some amount of “cash considerations.” A similar maneuver would be MLB awarding a Padres 2017 draft pick to the Sox. Far less likely, though theoretically plausible, MLB could require the Padres to absorb the contract of a player the Red Sox would like to be rid of, such as Pablo Sandoval or Allen Craig. A transaction along one of these lines would make the Sox better without depriving the franchise of Pomeranz.

There is precedent of Manfred removing players from an organization as a form of punishment. The Red Sox know this quite well: In July, the Sox were stripped of five prospects as part of an MLB sanction for circumventing rules on money paid to international players. Although it is thought that other teams engaged in the same practice, Manfred’s stiff punishment was designed to admonish other clubs that they too could face tough sanctions. If Manfred wanted to send a similar message to teams about the consequences of concealing medical information—which is not only dishonest but undermines the integrity of the game and interferes with fair play—he might be inclined to see the Sox compensated by the Padres.

Red Sox cannot successfully sue

While there is a logical argument for the Red Sox to be compensated for the Pomeranz trade, at this time MLB appears unlikely to order such compensation. In a statement, MLB says it "considers the matter closed." The Red Sox, however, might not consider the matter closed. Red Sox chairman Tom Werner on Friday told NESN that 'we felt that some wrong was committee and that it's important to have a level playing field." So could the Sox invoke their right to arbitrate the matter within baseball or even sue the Padres in hopes of obtaining justice? 

The Red Sox might seek arbitration but don’t expect a lawsuit. MLB clubs contractually assent to the commissioner having final say over disputes between teams. There are several terms in baseball’s constitution and bylaws that affirm the commissioner’s ultimate authority. For instance, the commissioner is entrusted with enforcing the “best interests of Baseball.” This provision instructs that the commissioner has the clear authority to resolve the league’s internal controversies. Teams also assent to private arbitration as the means to settle disagreements, with the commissioner serving as the arbitrator. Rarely do teams’ disputes continue into the courts after arbitration, although as the Washington Nationals-Baltimore Orioles dispute over TV rights fees shows, on occasion that does happen. Lastly, teams contractually waive away their right to bring to court many types of claims against the league and its teams.

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These and other contractual terms have generally prevented aggrieved owners from successfully bringing cases against baseball and its teams. Most famously, in Charlie Finley v. Bowie Kuhn, the U.S. Court of Appeals for the Seventh Circuit upheld the powers of a commissioner from a challenge by an owner. Athletics’ owner Charlie Finley sued commissioner Bowie Kuhn over Kuhn preventing Finley from selling player contracts to other teams. Kuhn reasoned that it was not in the best interests of the game for owners to sell off player contracts, while Finley insisted that owners ought to have discretion to run their teams as they see fit. Finley’s case failed because, as an owner, he contractually accepted the commissioner’s decision-making authority.

So don’t expect a lawsuit over the Pomeranz for Espinosa trade. But for the Red Sox to be “made whole again”—a core goal of the U.S. legal system—MLB might want to redesign that trade.

Michael McCann, SI's legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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