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Posted: Thursday January 7, 2010 11:50AM; Updated: Thursday January 7, 2010 1:40PM
Michael McCann
Michael McCann>SPORTS LAW

New twist in Wizards gun incident

Story Highlights

Javaris Crittenton reportedly loaded his gun during the locker-room dispute

If the report is true, the third-year bench player's career could be in jeopardy

The details could also bring trouble for the Washington franchise

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Javaris Crittenton
Javaris Crittenton reportedly loaded and cocked his gun during a locker-room dispute with teammate Gilbert Arenas.
AP

In light of a Washington Post report that, according to two first-hand accounts, Javaris Crittenton loaded and cocked his own gun during a dispute with Gilbert Arenas, SI.com legal expert Michael McCann answered key questions about the new, and possibly heightened, consequences the players and team could face.

If this report is true, and Crittenton did load his gun in the dispute, what could this mean for him?

In terms of the criminal prosecution, the defense attorney quoted in that story is probably correct in that, unless there's an actual gun, it's going to be difficult to pursue charges against him just based on second-hand accounts or rumors. However, I think the NBA could take action. The NBA doesn't have to wait and take the same legal safeguard that law enforcement authorities do.

The other issue here is what Crittenton and Arenas have told police, because their stories better match up. First off, it's a crime to knowingly lie to law enforcement authorities. And second, if all these reports are true, you wonder if they're in sort of a prisoner's dilemma. Initially, it seemed they both had an interest in keeping the story straight, but now that it's gotten worse, maybe their interests have changed and they're maybe saying different things.

If Crittenton and Arenas are giving different accounts of what happened, how will that affect the NBA's action?

I think the NBA will view the differing accounts negatively. The fact that their stories don't appear to be straight, commissioner David Stern will view that as a failing on both their parts, even if one of them is telling the truth. The idea that they're not fully owning up to what happened -- maybe one isn't, maybe both aren't, we don't really know -- just makes it more embarrassing for the NBA. This just looks like a fiasco. And I think it's going to aggravate Stern even more. The inconsistencies work against the players in terms of the NBA's response.

Could Stern discipline the Wizards as a franchise after all this?

If he feels the Wizards haven't been forthcoming, or if they knew players brought guns into the locker room and they didn't take action, then yes, he could punish them. As a franchise, the Wizards have a fiduciary duty to the league as a whole, and if Stern feels the team hasn't lived up to it, Stern could punish them with a fine, most likely. I guess he could take away draft picks, but that's usually reserved for maneuvers that are tied to the salary cap, like with the Kevin McHale and Joe Smith deal.

If this Crittenton report is true, that means two players on the same team brought guns in the locker room. One can't help but to think if, and how many, other players may also be bringing guns to arenas. What does this say for the NBA as a whole, and what action can Stern take to change this?

This is going to increase Stern's desire to collectively bargain changes in terms of player behavior. More specifically, I think the league is going to look at using investigatory devices to monitor players, such as checking their lockers. Years ago, the commissioner talked about having some kind of security group to follow players around, and many people thought that was sort of Big Brother-esque. But the key here, based on a legal standpoint, is if the commissioner pursues these policies through collective bargaining with the players' association and the association signs off on those, then the players have to abide by them. Now, if the commissioner unilaterally imposes the changes, then the players' association will potentially object. The key is that Stern gets consent from the union to get more oversight on the players.

But I also think Stern is going to look at the whole player-gambling phenomenon -- the video games, the card games. It wouldn't surprise me if the commissioner put an end to gambling over card games and the like since it appears gambling over cards precipitated the gun issue.

Could the players' association reasonably defend Crittenton if he did in fact load a gun?

Yes. The argument by the players' association in defending any player is that whatever treatment he gets in a specific instance could become precedent-setting and impact other players in the future. In a way, the argument is that they're not just fighting for him; they're fighting for all players. And that's consistent with their fiduciary duties to all players.

The other thing they may want to focus on is that the whole idea of "innocent until proven guilty" remains in sight. They don't want the commissioner taking action until after the criminal investigation, even if the early signs look negative for a player.

Could the other Wizards players who seemed to take amusement in Arena's pretend gun-pointing in Philadelphia be disciplined?

They could. Stern could conclude that they encouraged a lighthearted perspective on a very serious matter. Practically, it's difficult for the players in that situation to be viewed as culprits, but joking around with guns is such a serious manner, particularly now if the guns are actually loaded. Going back to what the players are telling police, what they're telling the NBA is important too. If Stern feels like the players are either lying or simply omitting facts, he will come down very hard on them. It will also make it more difficult for the players to appeal any kind of suspension, and it will give the Wizards' better ground to terminate a contract. Even though that may be hard to do, there is Clause 16 of the NBA's Uniform Player Contract, which is basically a moral clause. Lying makes their behavior look worse.

If Crittenton did have a loaded gun and Arenas did not, could that give Arenas an advantage in the investigation?

From the D.C. police's perspective, Arenas still commits a crime by having a gun -- loaded or unloaded. Of course, it's worse, legally, if it is loaded, but he's still in trouble just for having the gun. From the story perspective, if it is true, it looks like Crittenton behaved worse by having a loaded gun, so I guess from that lens, what Arenas did may be seen as not as bad. But it's a still a gun. And Arenas had four of them.

I don't think it's going to help him with commissioner Stern; I think Stern will focus on the gun aspect. But for Crittenton, if this is true, this could end his NBA career.

Is there anything else we should be aware of in this incident?

There's always the prospect that an assault took place, from a criminal aspect. If one player threatened another with a loaded gun -- in D.C., assault includes "threatening another in a menacing matter" -- there's a real chance that an assault took place. I don't know if the police will pursue that, but one criminal aspect in this case beyond gun possession is assault.

Going back to what the Wizards' responsibility is, it'll be interesting to see which players saw what happened. As the NBA conducts its investigation, it will meet with player witnesses, and players' agents will have to make sure their clients aren't implicated in this situation. But at the same time, the players have to be careful so that they don't say things that bring them into the story. They don't want to get suspended. So there's an incentive for the players in that, whatever they saw, is viewed as something they saw from afar, because this could grow beyond Crittenton and Arenas. It's a major concern for the Wizards, and for Stern.

Another angle is how all this will affect the endorsement potential of Gilbert Arenas. Will he ever be able to get endorsement deals again? What was previously seen as charisma and gregariousness is now seen as something potentially criminal. And I wonder if his endorsement potential is, if not obliterated, badly damaged.

***

More Arenas Coverage

WASHINGTON POST: Crittenton loaded, cocked gun during dispute
AP: Arenas suspended indefinitely without pay
THOMSEN:
Arenas seemed to begging for suspension
STERN SPEAKS: Commish says continued antics led to Arenas' suspension
MALONE: NBA legend delivers harsh message on Arenas incident
FANHOUSE: Another Arenas 'joke' caught on camera
GALLERY:
Athletes run into trouble with gun-use

Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. In the spring of 2010, he will teach a sports law reading group at Yale Law School.

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