Commentary

The ball is in Gilbert Arenas' courtroom

Looks like the Wizards star can keep his NBA contract. His freedom? Maybe not so much

Originally Published: January 21, 2010
By Lester Munson | ESPN.com

Gilbert ArenasAP Photo/Lisa BillingsGilbert Arenas still has some explaining to do to the judge who will sentence him in late March.

Plea agreements, contracts, libel, slander and (our personal favorite!) moral turpitude … they're all a part of the view from Courthouse Seat's vantage point this time around. Thursday, we start …

In, on and off the court with Gilbert Arenas

Facing the possibilities of termination of his Wizards contract, months of incarceration in a federal penitentiary or both, it is easy to see why Gilbert Arena might be worried.

But before Arenas concludes that his life has become unmanageable, here are two things he may want to consider. First, close readings of a firearms clause in the NBA collective bargaining agreement and a punishment clause in the league's constitution show that termination of his contract will be almost impossible. And second, he needs to find a way to make a better impression on D.C. Superior Court Judge Robert E. Morin, because his first appearance in Morin's court was a bad start.

[+] EnlargeDavid Stern
China Photos/Getty ImagesDavid Stern's options for punishing Gilbert Arenas appear to be limited by the NBA's constitution.

The $111 million contract that Arenas signed in 2006 requires that Arenas, like any NBA player, conform to "standards of good citizenship," and it expressly bars "engaging in acts of moral turpitude." Brandishing guns in a team locker room hardly qualifies as good citizenship, and might qualify as moral turpitude. By themselves, the citizenship and moral turpitude provisions may be a basis for the Wizards to demand that an NBA arbitrator void the contract.

But the Wizards and their lawyers can't consider the citizenship and moral turpitude provisions in a vacuum. They have to account for the rest of the league's collective bargaining agreement, too -- especially a section on player conduct that bans firearms from all NBA venues but includes a provision (Article VI, Section 9[b]) that all punishment for gun violations must be done in accordance with yet another legal instrument, the NBA constitution.

The constitutional provision specifically limits commissioner David Stern's powers over gun violations. He can suspend a player for a "definite or indefinite" period, and he can fine a player as much as $50,000. But that's it. That is the beginning and the end of any punishment for a gun violation.

There is no provision for terminating the player's contract.

Any attempt by the Wizards to terminate the Arenas contract would run smack into those prescribed punishment guidelines, provisions that seem to have been negotiated in anticipation of the Arenas incident. It would be highly unlikely that the NBA's arbitrator, Calvin Sharpe, would ignore a firearms clause that is the product of specific bargaining between the players union and NBA owners. So Arenas might be feeling secure about the status of his contract.

But before he can feel secure about his next court appearance, he needs to do some image rehabilitation. As they say, you never get a second chance to make a first impression; in this case, Morin's impressions matter.

As he faced obvious and serious problems under draconian D.C. gun laws, Arenas hired the right lawyer -- Ken Wainstein, the former U.S. Attorney for the District of Columbia and an advocate who knows his way around the D.C. criminal courts as well as anyone.

Wainstein quickly put together a highly advantageous plea bargain, reducing what easily could have been multiple felony charges on each of four guns to a single felony count.

To seal the deal, Arenas and Wainstein appeared before Morin on Friday for what should have been a routine courthouse ritual. In any plea bargain settlement, the judge asks the accused a series of questions to make sure that there is complete comprehension of the arrangement. None of the questions is a surprise, and the answers should be obvious.

But when Morin asked Arenas if he knew the maximum possible prison term for the charge against him, Arenas blurted, "Yes, six months." Wrong answer. The maximum term is five years. Six months is the low end of the sentencing guidelines that Morin will consider when he sentences Arenas on March 26.

If Arenas wants to impress Morin with his contrition and his acceptance of responsibility, he must do better than that. In the culture of the courthouse, the "six months" answer indicates the kind of casual and cavalier approach to the situation that can lead to a stiffer sentence.

Arenas must also do better as he faces a lengthy interview in the presentence investigation Morin ordered. Officers of the federal probation service will interrogate him on all aspects of his life, including a gun charge he faced in California seven years ago. Mistakes and misrepresentation in the interview could make a bad situation even worse.

If Arenas manages to respond accurately and honestly to the presentence investigation, he will greatly enhance his chances of avoiding incarceration.

Lawyers who practice before Morin, a highly respected jurist, told ESPN.com that a prison term for Arenas is likely but not inevitable.

"It would be hard for the judge to do something for Arenas that he would not do for another young man without the money and the fame," one lawyer said. "He already caught a break when they reduced it to one felony, and jail time seems likely."

But according to another veteran Washington defense attorney, if Arenas and Wainstein put together "a fabulous sentencing package that shows contrition and contributions to the community, then probation is possible."

Both lawyers spoke anonymously because of cases currently pending before Morin.

Richard Gilbert, a highly regarded defense attorney in Washington, told ESPN.com, "Judge Morin is thoughtful and thorough and would respond to a positive presentation from Arenas. If he can persuade Judge Morin that he now 'gets it' and wants to do the right things, I would easily see a term of house arrest or time in a halfway house or some other sentence short of time in the penitentiary."

His contract appears to be secure under the collective bargaining agreement's firearms clause, so Arenas can focus his efforts on his court case and the presentence investigation. It will not be easy. In a similar investigation several years ago, Michael Vick tested positive for marijuana and lied to investigators, adding months to his sentence on dogfighting charges. How will Arenas respond? We will know when Morin pronounces sentence on March 26.

Defamation is all the rage

In the world of sports and the law, there is little doubt that the flavor of the month is libel and slander. The highly fashionable form of litigation brings together Mike Leach (former Texas Tech football coach), Manny Pacquiao (the world's greatest fighter) and Mike Pressler (the former Duke lacrosse coach.)

Leach has added libel and slander to a host of claims he is making against Texas Tech. University officials, according to Leach's lawsuit, were guilty of libel and slander when they accused him of abusing wide receiver Adam James.

Leach and his lawyers added that claim to the breach of contract suit they filed when Tech fired Leach. That one probably doesn't amount to much as libel and slander claims go, because it appears to be part of an attempt to extract a settlement from the university.

[+] EnlargeManny Pacquiao
AP Photo/Frank Franklin IIManny Pacquiao is packing some serious wallop in his legal fight against Floyd Mayweather's camp.

Pacquiao and Pressler, however, have claims that are worth watching.

Allegations of steroid use from the Floyd Mayweather Jr. camp resulted in the lawsuit and were part of the reason negotiations fell apart for what might have been the most lucrative fight ever. Now, if Mayweather and promoter Oscar De La Hoya cannot support their allegations, those statements might be the foundation for the most lucrative libel and slander case ever.

Pacquiao's attorney, Daniel Petrocelli, is one of America's great trial lawyers. He won a civil case money judgment against O.J. Simpson in the murders of Simpson's former wife and a friend, and he represented former Enron CEO Jeffrey Skilling in his fraud and insider trading trial. Although Petrocelli lost that case before a jury in Houston, he has managed to persuade the U.S. Supreme Court to review the conviction, a highly promising development for Skilling.

Litigation has always been a negotiating tool in boxing. Promoters such as Don King and Bob Arum, for example, seem to file and dismiss lawsuits as a routine stage of putting a fight deal together, but those suits rarely take a case anywhere near a conclusion. Petrocelli and Pacquiao, though, appear to be doing something different. The drafting and the factual material included in their lawsuit go well beyond the usual court filing, and will force the Mayweather people and De La Hoya into careful consideration of their responses to the charges. The lawsuit is not something they can shrug off.

Pressler, who was fired in the early weeks of the 2006 lacrosse team rape case, settled with Duke in June of that year when it became apparent his dismissal was, according to his lawsuit, "without cause."

The settlement included a requirement that Duke officials and Pressler refrain from any comments on Pressler's performance as Duke's coach. But in early June 2007, just less than a year after the settlement, Duke spokesman John F. Burness told both Newsday and The Associated Press that Pressler's failure to supervise the team was a factor in what happened. Burness also made unflattering comparisons between Pressler and his replacement at Duke.

Pressler and his lawyers have already prevailed once against withering attacks from the Duke University legal team. There will be more to come as Pressler fights back again.

Political footballs, baseballs and hockey pucks

The pundits will talk about health care and jobs and deficits, but the key factor in the triumph of Republican Scott Brown in the special-election Senate race in Massachusetts earlier this week might actually have been sports.

Democratic candidate Martha Coakley could not be bothered to stand outside Fenway Park and greet a huge throng of Bruins fans who attended the NHL's outdoor extravaganza on New Year's Day. She not only wouldn't and didn't do it, but she talked publicly about it, too, incredulous that anyone would suggest to her that she "stand outside in the cold at Fenway Park and shake hands."

Brown, of course, did exactly that.

Then, in a gaffe that should be recorded forever in political almanacs and encyclopedias, she somehow managed to say publicly that Curt Schilling was a Yankees fan. (Listen to the clip here.)

In contrast, Brown capitalized on his daughter Ayla's success on the Boston College basketball team and used BC immortal Doug Flutie in his campaign. As he declared victory Tuesday night, Brown acknowledged the role of sports in his successful campaign, joking that, during his congratulatory telephone conversation with President Obama, he'd suggested a two-on-two basketball challenge in which the new senator and his daughter would play Obama and a player of Obama's choice.

There's a lesson here for candidates everywhere: Talking about sports can help your campaign. Just make sure you do it right.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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