The relevant Gilbert Arenas legal language thread
It occurs to me that many of us (myself included) are speculating on the possibility of the Wizards voiding Gilbert Arenas' contract without taking as much time as needed to study the actual language of the Uniform Player Contract, the NBA Collective Bargaining Agreement and several other key legal documents that might help us get a better idea. If this isn't your cup of tea, feel free to skip this thread, but I wanted to use it as a dumping point for people to post relevant legal language to help guide our discussion.
Below the jump, the relevant language from the Uniform Player Contract and the most recent Collective Bargaining Agreement. Feel free to add more key links so we can update this, and also feel free to speculate on what the language means. Also, if you have any documents and articles from cases you believe are good precedents for this one, please put those in the comments.
Uniform Player Contract, Section 5
(a) The Player agrees to observe and comply with all Team rules, as maintained or promulgated in accordance with the CBA, at all times whether on or off the playing floor. Subject to the provisions of the CBA, such rules shall be part of this Contract as fully as if herein written and shall be binding upon the Player.
(b) The Player agrees: (i) to give his best services, as well as his loyalty, to the Team, and to play basketball only for the Team and its assignees; (ii) to be neatly and fully attired in public; (iii) to conduct himself on and off the court according to the highest standards of honesty, citizenship, and sportsmanship; and (iv) not to do anything that is materially detrimental or materially prejudicial to the best interests of the Team or the League.
(c) For any violation of Team rules, any breach of any provision of this Contract, or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the Player, the Team may reasonably impose fines and/or suspensions on the Player in accordance with the terms of the CBA.
Uniform Player Contract, Section 16a
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;
(ii) at any time commit a significant and inexcusable physical attack against any official or employee of the Team or the NBA (other than another player), or any person in attendance at any NBA game or event, considering the totality of the circumstances, including (but not limited to) the degree of provocation (if any) that may have led to the attack, the nature and scope of the attack, the Player's state of mind at the time of the attack, and the extent of any injury resulting from the attack;
(iii) at any time, fail, in the sole opinion of the Team's management, to exhibit sufficient skill or competitive ability to qualify to continue as a member of the Team; provided, however, (A) that if this Contract is terminated by the Team, in accordance with the provisions of this subparagraph, prior to January 10 of any Season, and the Player, at the time of such termination, is unfit to play skilled basketball as the result of an injury resulting directly from his playing for the Team, the Player shall (subject to the provisions set forth in Exhibit 3) continue to receive his full Base Compensation, less all workers' compensation benefits (which, to the extent permitted by law, and if not deducted from the Player's Compensation by the Team, the Player hereby assigns to the Team) and any insurance provided for by the Team paid or payable to the Player by reason of said injury, until such time as the Player is fit to play skilled basketball, but not beyond the Season during which such termination occurred; and provided, further, (B) that if this Contract is terminated by the Team, in accordance with the provisions of this subparagraph, during the period from the January 10 of any Season through the end of such Season, the Player shall be entitled to receive his full Base Compensation for said Season; or
(iv) at any time, fail, refuse, or neglect to render his services hereunder or in any other manner materially breach this Contract.
NBA Collective Bargaining Agreement (finalized last in 2005), Article 6
Section 7. Unlawful Violence.
When a player is convicted of (including a plea of guilty, no contest, or nolo contendere to) a violent felony, he shall immediately be suspended by the NBA for a minimum of ten (10) games.
Section 9. Firearms.
(a) Whenever a player is physically present at a facility or venue owned, operated, or being used by a Team, the NBA, or any League-related entity, and whenever a player is traveling on any NBA-related business, whether on behalf of the player's Team, the NBA, or any League-related entity, such player shall not possess a firearm of any kind. For purposes of the foregoing, "a facility or venue" includes, but is not limited to: an arena; a practice facility; a Team or League office or facility; an All-Star or NBA Playoff venue; and the site of a promotional or charitable appearance.
(b) Any violation of Section 9(a) above shall be considered conduct prejudicial to the NBA under Article 35(d) of the NBA Constitution and By-Laws, and shall therefore subject the player to discipline by the NBA in accordance with such Article.
Section 10: One Penalty.
(a) The NBA and a Team shall not discipline a player for the same act or conduct. The NBA's disciplinary action will preclude or supersede disciplinary action by any Team for the same act or conduct.
(b) Notwithstanding anything to the contrary contained in Section 10(a), (i) the same act or conduct by a player may result in both a termination of the player's Uniform Player Contract by his Team and the suspension of the player by the NBA if the egregious nature of the act or conduct is so lacking in justification as to warrant such double penalty, and (ii) both the NBA and the Team to which a player is traded may impose discipline for a player's failure to report for a trade in accordance with paragraph 10(d) of the Uniform Player Contract.
36 comments
|
0 recs |
Do you like this story?
Comments
I have no paperwork and just what was said-
but at that mgmt dinner I went to last week – they did say he had signed something at the beginning of the season outlining do’s and don’ts. maybe that can also be used?
If it can be found, I'll definitely post it
You know you'll get devoured by Cheaney, Wallace, and Juwan Howard.
It seems doubtful
Because of the one penalty rule.
Frankly I don’t see how the Wizards can successfully void the contract without Arenas getting a lengthy prison sentence cutting into next season (or perhaps training camp).
by Johnnie Futbol on Jan 29, 2010 1:48 PM EST up reply actions
perhaps you meant something different...
by “that can also be used.” Sorry for the confusion.
I’d be curious to see that if someone can track it down.
by Johnnie Futbol on Jan 29, 2010 1:50 PM EST up reply actions
I doubt we;ll be able to track it down-
seems an in-house wizards managment thing. But I am going to send an e-mail to see if I can find out a little more about it.
.
section 10 makes no sense
under what circumstances would a player commit a violation serious enough to warrant his contract being voided without the league suspending him …
I don't think you're reading it right
My read is that is says a player can’t be punished by the league and the team for the same violation, unless it’s a particularly bad offense.
You know you'll get devoured by Cheaney, Wallace, and Juwan Howard.
right - thats how i read it also
and i understand all of the comments wrt double jeapordy….but,
section 10.B seems very clear to me…this it is allowed (both an NBA penalty and a VOID) in certain cases. it comes down to how an arbitrator interprets an ‘egregious act’. i guess choking a coach isnt egregious…is bringing guns into a locker room?
One thing to note about coach-choking
As RamV pointed out in a previous thread, the Sprewell incident occurred before the latest CBA, and Section 10b was added after that happened.
You know you'll get devoured by Cheaney, Wallace, and Juwan Howard.
Let me clarify
The Sprewell thing happened under the ‘95 CBA (two CBAs ago), but I don’t personally know when the language in VI.10.b.i was added. I just speculated that, given the wording, it might have been in direct response to that incident.
Mike – if you know for a fact when it was added I’d be interested to know, and in particular if it was done in the ’05 agreement or the ’99.
then i think it can be used in this case
and the people referring to the sprewell incident as precedent should recognize this.
And the dichtomy between league/team
opens a whole can of worms. Specifically, Anti-Trust worms. In previous case law, they have been treated as one entity since the unit of production cannot be produced outside of the union. If so, how can a team and the league punish a player for the same digression if the punishments occur at different times, if in fact, they are the same entity? If they were separate, that wouldn’t necessarily be a problem, but current case law suggests they are.
The babies been thrown out with the bathwater
“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 obey the Team’s training rules;”
Think about how ridiculous this clause is. Theoretically, Andray Blatche’s contract could have been voided for this incident from January 12th, 2010:
Head athletic trainer Eric Waters approached Blatche and asked him to head to the training room. Blatche responded, “Do I look like I care about my knee?”
Because the agreement contains laughably strict and unenforceable sections such as that listed above, all of the sections, even the sensible ones such as voiding for a felony have been ignored and not applied.
I am similarly struggling with the logic
Look at 16a(iii): “The Team may terminate this Contract … if the Player shall at any time, fail, in the sole opinion of the Team’s management, to exhibit sufficient skill or competitive ability to qualify to continue as a member of the Team.”
This seems to say that a team can terminate a contract if it decides — in its sole opinion — that player is no longer good enough skillwise to continue to play NBA basketball. So the Wizards should be able to terminate Stevenson’s contract? Chicago should be able to terminate Jerome James’ contract? Essentially any 14th or 15th man on a team can have his contract terminated? That doesn’t make sense, so something’s missing here.
Those are guaranteed contracts
Both Blatche and Stevenson have guaranteed contracts. That means that if they are terminated they are guaranteed to get paid (presuming the reason for the termination is one of the things for which their contract contains a guarantee). If, by some chance, Gilbert’s contract contains a moral turpitude guarantee he’d be OK – but I doubt it does.
Many shorter, lower-level contracts (e.g. Boykins) are not guaranteed, but if terminated after Jan 10 the player receives full pay. That’s why it’s often said that a contract “becomes guaranteed” or “becomes guaranteed for the season” after that date.
I'm not sure I follow your point
What I’m saying is that 16a(iii) seems to say that a team can terminate a contract if it decides the player’s skill level is too low for NBA play. But as we know, most players have guaranteed contracts, so if such a player is terminated, our current understanding is that he still gets his money.
But Paragraph 16a(i), in that same paragraph 16a, has the “good citizenship/moral turpitude” clause that people are discussing, and 16a(ii) has the choking clause. So this contract seems to allow the same kind of termination for:
(i) acts of moral turpitude;
(ii) choking a coach or beating up a fan;
(iii) being someone who no longer is good enough to play in the NBA.
That third one (iii) doesn’t seem to fit with the other two. So I’m questioning what “termination” means. Does it mean getting cut and being paid your guaranteed money?
Sorry, I tried to be clear
When a contract is guaranteed, it’s generally not a “blanket” guarantee. It’ll be specific to the reasons for termination that might be applied. The examples I have heard have been guaranteed for lack of skill, for basketball injury, for non-basketball injury, for mental illness, etc. They can also be partially guaranteed either as a proportion of pay (e.g. 50% guaranteed) or for some period of dates (e.g. guranteed for first 3 of 5 years). Theoretically a contract could be guaranteed for moral turpitude, but without having seen any data I find it incredibly unlikely.
To answer your last question...
Termination means having your contract ended. If your contract contains a guarantee against the reason for your termination, you get paid the length and amount that’s guaranteed. For example, I presume if DS got cut for sucking he’d get his money, but if he got cut for punching me for writing this he might get nothing. (He might actually get paid for the rest of this season, if I read it correctly, and of course he’d have an opportunity to challenge through arbitration.)
All else is as written in 16a(iii)
So, what I think you are saying is that there will be another paragraph in the contract somewhere that states the grounds on which a contract is guaranteed. Some mid-season pick-up might not have his contract guaranteed on any grounds, but someone like Gilbert might have his contract guaranteed on a long list of issues. Correct?
Pretty much
The only two times a guarantee is required are a) a rookie contract is 80% guaranteed for lack of skill, injury, or illness and b) a sign-and-trade has to be guaranteed for skill for at least the first year. In practice, though, most non-min contracts have at least some guarantee, as it’s a key part of the negotiation process.
I don’t know about a “long list” for Gil, mostly since I’ve never seen a guaranteed contract. I would be forced to guess, but rest assured it at least has lack of skill, on court injury, illness, and probably off court injury, but excluding certain types of behavior (motorcycling, Russion roulette, etc.).
One other thing...
… any player is guaranteed for the length of his contract for injuries sustained playing with or for the team (e.g. practice or game related injury), for the duration of his injury. So if Paul Davis (for example) broke his knee and was terminated, he would be guaranteed for the duration of his contract or until his knee allowed him to play, whichever comes first.
Not exactly
Miles’ Portland contract was guaranteed anyway. My point is that even a player without a guaranteed contract gets paid while nursing a basketball injury.
Very interesting post
I didn’t realize that a player’s violation of the collective bargaining agreement provision re: firearms was independent grounds to terminate a player’s contract. If I’m the Wizards and I’m seriously considering termination, that’s a somewhat smoother path to take than the contract’s “moral turpitude” boilerplate, which seems like it was purposefully crafted to be unenforceably vague.
Section 9 says no firearms: that’s a bright-line test. Section 10 says the team can terminate the player’s contract for violating section 9, “if the egregious nature of the act or conduct is so lacking in justification as to warrant such double penalty.” That is not such a bright line, but again, it’s easier than the alternative. Arenas had no justification to speak of. The only hazy part is whether this was an “egregious” act. I’d say that “egregious” in this context translates as “especially bad”. Is it especially bad to have unloaded guns in a locker room?
The argument for Arenas’ attorney would be that the inclusion of the word “egregious” in Section 10 requires a greater standard of culpability than merely possessing firearms in an NBA facility – the word “egregious” suggests that there had to be something especially bad about the possession of firearms before they could terminate under this section. So for example, if they prove that Crittenton loaded and pointed a gun at Arenas (and that it wasn’t self-defense), that’s egregious – it’s possession plus a threat to use the gun. Maybe possessing four guns in an NBA locker room is egregious – it’s four times as bad, he’s “flouting the terms of the CBA”, etc. Maybe the context of his conversation with Crittenton makes his possession of firearms egregious, but good luck proving the substance of that discussion. This could go either way. But barring the possibility that there’s something else in there with more straightforward language that they could use, this is the route they’ll take.
The Supreme Court
in Kolstaff vs ADA (1999) recognized that: "Malicious and reckless conduct [is] by definition egregious".
There is plenty of case law describing specific instances of egregious behavior. Gil can try his “I was only fooling around” defense, but it would seem that the NBA has all but said that Gil’s actions were egregious. Certainly, in asking for up to 6 months in prison, the prosecutor views Gil’s actions as egregious.
Maybe a few die-hard fans buy Gil’s defense. But they would never be allowed to sit as a arbitrator or on a jury.
Don't confuse criminal law with contract
I see your point, but no one’s going to cite the Supreme Court’s criminal cases in support of a contract dispute; it’s not the same thing. I can see how someone could look at Arenas’ plea deal and say, “There’s your proof that his possession of firearms was ‘egregious’”. But remember, the DC Code doesn’t require maliciousness or recklessness – Gilbert pled guilty to a strict liability offense. The offense of possession without a license & reg. in D.C. doesn’t require mens rea (criminal intent). If it did, he probably would have gotten off completely. Also, the prosecutors asked for the minimum that they could ask for under the sentencing guidelines, and they are not requesting 6 months behind bars for Gilbert Arenas.
I think that “egregiousness” in this context comes back to that one central question: is possession of a gun in an NBA locker room egregious if the gun wasn’t loaded, and the person didn’t have any ammo at the ready? If I was the arbitrator, I’d have a hard time buying that. That’s part of why I’m inclined to think that the Wizards aren’t going to try to void Arenas’ contract.
You don't think the rest of the season is fair?
Not trying to argue – just interested in what you would have done? I like getting different ideas
I would’ve given him a one-month suspension for the act of bringing guns into the locker room, and I might even give him as much as another month (off the record) for acting like a fool and unnecessarily generating additional negative publicity. This isn’t the first time a player has brought guns into an NBA facility; it’s just the first time that it’s gotten so much press (or any press?).
Arenas is largely to blame for that. But it does seem that the season-long suspension is about making him the example, rather than being based on any sort of fundamental fairness. I also think that it’s unfair to fans who’ve waited patiently for years to see the team play together. I get the feeling that this was a personal thing with Stern, but Stern is in charge of an entire league of professional teams. In other words, he’s a manager, not a judge – but if you’re going to try to wear a judge’s robe, you need the ability to step back, take a deep breath and distance yourself. If you can’t do that, you should delegate, or find other employment.
YMMV, yadda yadda yadda. Man, I look forward to not beating this dead horse anymore.
You're framing the question
from the defense’s perspective. The central question is whether Arenas’ actions (plural) were egregious. Included in the fact set is his first violation, the violent confrontation at the card game, the felonous transport of four weapons, the heated encounter, Crit’s gun, taunting Crit, the lack of remorse, the Philly debacle, etc. The dude’s a nut case who put other people at risk, but his guns weren’t loaded so his behavior wasn’t egregious? As I said, his defense is that he was just fooling around. You’ll notice that his lawyer doesn’t use that defense. He pleaded guilty to a felony and accepted up to six months in jail and a season long suspension. Saying his behavior isn’t egregious because they was no bullet in his gun looks at just one point. Who in their right mind (other than a Gil fan) would say his actions were no big deal.
The owners ought to challenge this case just to set precedent.
Like I said, it could go either way – there are arguments to be made for both sides. But to clarify: we’re talking about the egregious nature of the act of possession, not the egregiousness of a confrontation at a card game. Card game confrontations are not identified as termination-worthy in the CBA, but possession of a firearm is.
And actually, the defense of “He was just fooling around” probably will come up if the organization tries to terminate Arenas’ contract. His lawyer probably didn’t raise it before because it doesn’t work so well in defending someone against a strict liability crime. Strict liability means it doesn’t matter what he was thinking; but as you suggested in comparing the term “egregious” to “maliciousness” and "recklessness (both of which are loaded legal terms), the contract termination issue may get into the question of Arenas’ subjective intent, not just how bad you think this was.
Justice is blind?
If this ends up in arbitration, the arbitrator has an interest in preserving the possibility that both sides will be wiling to consent to use him/her again in the future.
Do you think they use the possession arrow?
The Grievance Arbitrator is a sitting position. They don’t go hire an arbitrator for every case.
Either party (NBA or NBPA) can ask to have him or her discharged every Sep. 1st, but otherwise he or she stays for the duration of the CBA. I am not aware of an arbitrator ever being involuntarily discharged.

by 


















