Gilbert Arenas suspended

Despite his recent troubles with guns, Gilbert Arenas pretended to shoot his Wizards teammates before Tuesday's win over the 76ers.
Despite his recent troubles with guns, Gilbert Arenas pretended to shoot his Wizards teammates before Tuesday's win over the 76ers. (Jesse D. Garrabrant/nbae/getty Images)
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Prof. Michael McCann
Associate Professor of Law, Vermont Law School
Wednesday, January 6, 2010; 6:00 PM

The NBA has suspended Wizards guard Gilbert Arenas indefinitely, without pay. Sports law expert Michael McCann took your questions about the legal implications, the severity of the punishment and what's next for the guard and the team.

McCann is a professor at Vermont Law School and the legal analyst for Sports Illustrated.

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Washington, D.C.: This could cost Gilbert a lot of money. What's the appeals process for an NBA player in this situation?

Michael McCann: The player can appeal back to the Commissioner's office, if that fails, and with the Players' Association assistance, a player can then file a grievance to object to the severity of a suspension. The grievance is heard by an independent arbitrator. Players normally don't go to such lengths, in part because suspension tend to be relatively short. There are exceptions, though, and we saw that with Latrell Sprewell, who benefited by arbitrator John Feerick's decision to reduce a 12-month suspension to about 7-months. If Arenas ultimately receives a suspension in the form of months, I could see the Players' Association challenging it.

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Arlington, Va.: Does the punishment really fit the crime here? This seems a lot harsher than the NBA has come down on other players, from Kobe to Delonte West. Is it because Gilbert has been unrepentant?

Michael McCann: I think the key issue here is what specifically Arenas is being punished for at this time. As I read the NBA's statement from this afternoon, it seems that he is being punished not for bringing the guns into the Verizon Center, but for what what league considers to be inappropriate behavior (using Twitter etc.) following his statement of contrition yesterday. In a way, he could be subject to two suspensions: the one he's currently subject to, and another--and more substantial one--for the guns.

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Washington, D.C.: What kind of leverage does this give the team, if it's looking for a way to dump Gilbert's contract? Does he have to be convicted of a felony before any morals clause kicks in?

Michael McCann: This is the real interesting issue, in my view. Clause 16 of the Uniform Player Contract empowers teams to void contracts and is vaguely worded to include not only criminal behavior, but behavior that is immoral. It has been seldom used, however (a recent example was the Celtics using it to terminate Vin Baker's contract, and that wasn't entirely successful, since it lead to a financial settlement with Baker). Hypothetically, if the Wizards terminate Arenas' contract through Clause 16, the Players Association will vehemently object and file a grievance, which will be heard by an independent arbitrator. Latrell Sprewell (with the Players' Association help) was able to get his contract with the Warriors reinstated, even though he chocked a coach, which is arguably worse than what Arenas did. Bottom line: if Arenas contract can be voided, think about what teams will do with other controversial players who have long-term, lucrative contracts.

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Hypothetically: If you were Gilbert's lawyer, what would your next move be?

Michael McCann: I would tell him to say absolutely nothing, to turn off Twitter, to get off Facebook, to stop having any public presence. And I'm sure his lawyer told him all of this, but the lawyer can't control the client, especially a client who is as gregarious and idiosyncratic as Arenas. Right now, Arenas has to be thinking about appearing before a court which could sentence to him to prison. Or before a commissioner who could suspend him for months. Or before a Wizards team executive who could try to void a contract that will pay him close to $100 million in its remaining term. It's time to get serious and to get off Twitter.

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Washington, D.C.: Thanks for taking questions. The NBA's statement said that the suspension is without pay. Since the NBA and not the team is the one making the decision here, does that mean that Arenas will never recoup that money, regardless of the contract with the Wizards? Also, Stern's statement implied that the punishment could be worse than an indefinite suspension. I assume that means a permanent ban from the NBA. If that happens, does that automatically void his contract, with the Wizards owing him no more money?

Michael McCann: Yes, that money is gone, unless he can convince the commissioner or an arbitrator to shorten the suspension. I don't think the commissioner will permanently ban him, but if he does, the Players Association will object and it will enter into a grievance process. The contract won't be terminated until that process is over. I can't imagine he will get more than a 1-year suspension and I don't think it will be that lengthy. But it's ultimately the commissioner's call.

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Arlington, Va.: I am constantly confused by the limitations owners/teams in professional sports have in disciplining players. I understand the unions are very strong and collective bargaining agreements place restrictions on certain actions.

But, in any other part of society, even organizations with unions (and I tend to be pro-union), if you bring a gun to work (arenas) or have multiple drug violations (many players) or fail to show up to work...you lose you job. Why not in professional sports?

Thanks.

Michael McCann: It's an interesting question. The bottom line is that the players have used some of their leverage in collective bargaining to create safeguards that protect the procedural rights of those who have been implicated in wrongdoing. They could instead opt to pursue higher minimum salaries or more flexible salary caps and other economic pursuits, but they use some of their bargaining to create legal safeguards for players who get into trouble.

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Cabin John: Arenas is a resident of Va., right? What is DC law about a non-resident bringing guns into DC? Do the guns need to be registered with DC for that to be legal? If so, did Arenas have a DC permit? (4 permits?)

I've heard there is a federal law (possibly a new one) that allows someone to transport guns across state lines, as long as you have a permit for your home state (if one is required), and the gun is unloaded and ammunition isn't available (locked in the trunk, for example). Is that true?

Finally, does Arenas have a prior conviction on a gun charge? Wouldn't that make any punishment more severe, even though the guns were unloaded? Thank you!

Michael McCann: Yes, you need a permit to take a gun into a public space in Washington D.C. I believe that is a bright-line/no exception rule. Virginia's guns laws, as I understand them, are more permissive in general, but they also require registration for concealed weapons (though they offer reciprocity/recognition for persons who register concealed weapons in certain other states, including Arizona, where Arenas used to live).

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Rockville, Md.: This seems to support that old saying: Do not mess with David Stern.

Michael McCann: Although I disagree with Commissioner Stern about the NBA's age eligibility rule (I think players should be able to pursue the NBA out of high school), it's hard to argue generally with his performance as NBA commissioner. The league has grown economically, both from a domestic and international perspective, and as you note, he has become quite powerful in that time. But the Players' Association will argue that there are collectively-bargained limits to his power and perhaps we'll see that come into play with Arenas.

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The Gambler: Gambling on cards seems to be pervasive in the NBA, and this isn't the first time we've heard about outstanding debts causing friction with players. (I think that's why Oakley slapped Ty Hill before a game a few years back, for instance.)

Can a team or the league ban its players from playing cards during the season, on team flights, etc.?

Michael McCann: This is an interesting topic and I suspect the league will pursue limitations on player behavior when it negotiates a new collective bargaining agreement with the Players Association. If the players association acquiesces to limitations sought by the NBA through the collective bargaining process, then the NBA could restrict a whole bunch of popular activities by players. I think the NBA will pursue changes in the Uniform Player Contract that elevate the level of responsibility players need to show. That may not mean not being able to play card games or Xbox 360, but it may prevent or limit players' capacity to gamble on the outcome of those games.

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Washington D.C: Indefinitely??? Why not 25 games or something? Gilbert didn't have a loaded gun like Telfair and Jackson.

Michael McCann: I think it's indefinite because there are really two sources of the suspension, and only one of those sources is certain, while the other of which remains to be resolved: Arenas's behavior during the last 24 hours (which is over and done and clearly annoyed the NBA) and Arenas's gun issue, which remains before the legal process. So Commissioner Stern suspends him now indefinitely--because of his behavior in teh last 24 hours--and the definiteness of it will depend on what happens with Arenas's legal issues with the guns.

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Alexandria, Va.: If there is a "morals" clause in Arenas's contract, which was subsequently broken, can the league terminate/void his contract?

Michael McCann: Yes, Clause 16 of the Uniform Player Contract. Here's the key part:

16.TERMINATION.

(a) The Team may terminate this Contract upon written notice to the Player if the Player shall:

(i) at any time, fail, refuse, or neglect to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship, to keep himself in first class physical condition, or to obey the Team‘s training rules;

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Washington D.C.: Wouldn't it be a good thing if Arenas and other controversial players could have their hefty contracts voided?

Michael McCann: It would be in some ways, as it would make players more responsible, and frankly more like the rest of us whose jobs are not guaranteed and we can't get away with reckless behavior and expect to retain our employment.

On the other hand, the rights of NBA players (and other pro athletes) are borne from collective bargaining, and if we respect the collective bargaining process, then we should we respect what players are entitled to because of that process. We may not like it when a player is irresponsible, but if there are safeguards in place for players and their contracts--however outlandishly lucrative they may seem--that they have legally obtained, then I think we should honor those safeguards.

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Washington, D.C.: This is a serious question. Has anybody closed to him suggested that Arenas get a mental health checkup? He's always been on the eccentric side, but the events of the past few years (injury and now guns) might push someone who was ill to do something even more harmful to themselves.

Michael McCann: I think the NBA and the Wizards would object to the discovery of some kind of mental/emotional issue that happens to be discovered, as luck would have it, right before he could suffer a lengthy suspension and possible contract termination. I think the NBA/Wizards would argue that Arenas may be idiosyncratic, but he is ultimately responsible for his decisions. Then again, if there is prior evidence of some kind of problem, that could come to light.

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Washington, D.C.: To what extent will any charges against Arenas depend on the zeal of a prosecutor or the apparent political sentiment? I'm thinking of Plaxico Burress, who clearly got hammered in court in large part because Mayor Bloomberg is so anti-gun and was very vocal about the case.

Michael McCann: Plaxico Burress also suffered because of New York law, which was very unforgiving and bright-line when it came to possession of a loaded firearm; my understand of D.C. law is that there is more opportunity for prosecutors to temper the outcome. But as you note, there seemed to be some desire among prominent political leaders that Burress not be treated with kid gloves because of his celebrity and wealth (and that may have had the effect of him being treated more harshly than a typical person).

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Youngstown Ohio: This may be a bit naive, but wouldn't the Player's union look better if they didn't fight the suspension, or is it mandatory to fight it if Gilbert Arenas wants to fight it?

Michael McCann: Not naive at all, it's a very good question. The Players Association owes fiduciary duties to all players in the Association, and they are legally obligated to pursue the best interests of those players. Even if the Players Association doesn't want to fight for Gilbert Arenas in this particular instance, the fact that his punishment--and possible contract termination--could set a precedent for how the NBA and its teams treat other controversial players probably means it has to fight for him.

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Raleigh, NC: How closely do you feel other sports leagues are watching this situation as it relates to collective bargaining and dealings with union(s)?

Michael McCann: I think very closely. Each league has its own set of collectively-bargained rules for player punishment, and they do vary a good deal among the leagues (case in point: NFL commissioner Roger Goodell can sanction a player for misbehavior under the NFL's Personal Conduct Policy, and the player's only right to appeal is back to Goodell himself -- not much of an appeal, but that's the rule that's been collectively bargained). I think leagues are seeing fans and maybe journalists less tolerant of player misbehavior and if so, that might encourage them to be less tolerant of players' misbehavior.

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Arlington, Va.: Is there any chance of Gilbert Arenas going to jail?

Michael McCann: Last answer -- thanks for reading my answers, really enjoyed this:

In theory, Arenas could face prison time (I believe up to five years), but it seems unlikely given that the guns were unloaded and it seems to be an innocent (if irresponsible) mistake. Then again, he did plead no contest to carrying a concealed gun without a license in 2003 in California, and that could suggest that he has not learned his lesson.

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