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Posted: Thursday January 14, 2010 8:34PM; Updated: Friday January 15, 2010 4:26PM
Michael McCann
Michael McCann>SPORTS LAW

Structure of plea key for Arenas

Story Highlights

Washington Wizards guard Gilbert Arenas was charged with felony gun possession

Arenas' attorneys have reportedly been negotiating a plea deal with prosecutors

The plea could affect prison time, his suspension and his $111 million contract

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Wizards guard Gilbert Arenas is scheduled to appear in court Friday after being charged with felony gun possession.
Ned Dishman/ NBAE/ Getty Images

Washington Wizards guard Gilbert Arenas, already suspended indefinitely and without pay by the NBA, has been charged by the U.S. Attorney's Office with a felony for carrying an unlicensed pistol outside a home or business. The felony charge carries with it a possible prison term of up to five years. Arenas could have faced four felony counts, since he reportedly possessed four separate guns.

Arenas and his attorneys have reportedly been negotiating a plea deal with prosecutors. Thursday's charge, in fact, could precede a guilty plea by Arenas as early as Friday or next week. A plea deal seems likely given that the felony charge was filed alongside an "information," a court filing that is similar to an indictment, except that it occurs when a defendant voluntarily relieves prosecutors of the obligation of obtaining a grand jury indictment. Defendants normally relinquish that right only when a plea deal is in the works.

In at least three ways, the structure of a plea deal is of paramount importance to Arenas.

The first and most important consideration for Arenas is whether and to what extent he would serve time in prison. If Arenas pleads guilty to a felony, as opposed to a misdemeanor, a prison sentence is a real possibility. Felonies are the most serious class of criminal offenses and normally carry a prison sentence of more than one year. People who plead guilty to felonies often do so knowing that they will receive a prison sentence. While prosecutors can recommend to the sentencing judge that the defendant receive a relatively light penalty, the judge normally has significant discretion in determining a prison sentence. Alternatively, if Arenas pleads guilty to a misdemeanor, a prison sentence is much less likely.

A probation officer, who would receive Arenas's case and issue a pre-sentencing report, would be a key person in determining whether Arenas receives prison time. A pre-sentencing report supplies a formal summary of relevant information on the case and normally includes a sentencing recommendation, which a judge need not follow but usually grants serious weight. There are mitigating factors working in Arenas's favor, including that he appears to have made an innocent (if careless) mistake in bringing guns to the Verizon Center and that the guns were unloaded. Arenas, however, has a history with guns that suggests he did not learn from a similar mistake: In 2003, he pleaded no contest to a misdemeanor charge in California for illegally possessing a concealed weapon.

Keep in mind, if Arenas is sentenced to prison, he would be subject to truth-in-sentencing policies, which require that defendants serve 85 percent of their sentences.

The second and related consideration for Arenas is how a plea deal would impact his NBA suspension. Clearly, Arenas's suspension will continue for some time and possibly for the remainder of the 2009-10 season. Arenas would benefit by plea deal since it would signal that he accepts responsibility for his mistake and that he understands there are legal consequences for making mistakes. If sentenced to prison, Arenas would remain suspended at least through the completion of his prison term.

The ultimate length of Arenas's NBA suspension is at the discretion of commissioner David Stern, who, under the collective bargaining agreement, can "suspend for a definite or indefinite period" any player who "shall have been guilty of conduct that does not conform to standards of morality or fair play, that does not comply at all times with all federal, state, and local laws, or that is prejudicial or detrimental to the Association." Stern is constrained, however, by the capacity of the players' association to seek independent review of any punishment that it deems excessive. The players' association, which owes fiduciary duties to all NBA players, would likely be troubled if Arenas pleads guilty to a misdemeanor (and not a felony) and avoids prison time, but is then suspended for a lengthy period of time. The players' association would worry that a lengthy suspension for a misdemeanor in this instance would empower the commissioner to similarly suspend other players who commit misdemeanor offenses.

Third, Arenas must worry about how the Wizards would respond to a plea deal. The Wizards could attempt to terminate Arenas's $111 million contract under Clause 16 of the NBA's Uniform Player Contract. Clause 16 empowers NBA teams to terminate a deal if a player "at any time, fails, refuses, or neglects 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 ..." Procedurally, the Wizards would place Arenas on waivers, and then terminate his contract after he clears waivers.

The Wizards would not have history on their side if they sought to use Clause 16 against Arenas, as it has seldom been employed to void NBA contracts. One unsuccessful attempt was in 1997, when the Golden State Warriors terminated the contract of Latrell Sprewell after he choked his coach, P.J. Carlesimo. On behalf of Sprewell, and consistent with the collective bargaining agreement, the players association filed a grievance. The grievance was heard by an independent arbitrator, Fordham University Law School dean John Feerick, who reinstated Sprewell's contract on grounds that the Warriors lacked just cause in utilizing Clause 16. Feerick's decision suggests that the Wizards would have the odds stacked against them: If chocking a coach can't get a contract voided under Clause 16, would possessing unloaded guns do so?

Another attempt by an NBA team to void a contract occurred in 2004, when the Boston Celtics tried to terminate Vin Baker's contract. They did so after Baker, who battled problems with alcohol, failed to keep himself in adequate condition. The Celtics, however, never explicitly signaled their grounds for attempting to void Baker's contract, though Clause 16, which also requires that a player keep himself in first class physical condition, was a likely source. The Celtics-Baker situation was different from the Arenas-Wizards situation in a number of ways, since it concerned substance abuse and the Celtics attempted to void Baker's contract only after repeatedly disciplining Baker. Ultimately the Celtics and Baker worked out an agreement whereby Baker reportedly received $16 million of the remaining $35 million on his contract.

It's possible that the Wizards could work out a similar buyout with Arenas, though expect the players' association to strongly oppose Arenas agreeing to any buyout. The players' association would be worried that teams would attempt to force buyouts with other players if the Wizards succeeded in doing so with Arenas.

Arenas is not the only player likely to face punishment for the locker room gun incident. The plight of Javaris Crittenton, who according to some accounts loaded and cocked his own gun in a dispute with Arenas, remains unresolved. Crittenton benefits by the fact that unless prosecutors can identify an actual gun, it will be difficult to charge him with a crime. On Thursday, Crittenton's apartment in Virginia was searched by police, but they reportedly did not find a gun. It is possible Crittenton could still be charged with assault, which under D.C. laws includes "threaten[ing] another in a menacing manner," but absent credible evidence, Crittenton appears likely to avoid prosecution. The NBA, however, could suspend him at any time.

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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