Monday, January 11, 2010

Seems Like The Movies

Gilbert Arenas's recent legal problems have thrown light upon Section 16(a)(i) of the standard NBA player contract:

The Team may terminate this Contract [...] if the Player shall: [...] 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.

Several pundits have suggested that the Wizards should void Arenas's contract under this "moral turpitude" clause. To my knowledge, no NBA team has ever attempted to invoke that clause, and it has never been litigated, either within the NBA's private appeals process, or in a real court. Unfortunately, "moral turpitude" is not defined further in the contract; nor is "first class physical condition". If Arenas were to be convicted of a felony, that might qualify as "moral turpitude" in the eyes of a judge or jury, but really, who knows? Construing an ambiguous contractual (or constitutional or statutory) clause is tricky business, especially when the document provides no helpful context.

Why didn't the NBA or the Players Association insist on defining the meaning of "moral turpitude" further, during the last negotiation in 2005? If they agreed on some negotiated set of taboo behaviors (murder, rape, spitting on the flag), however outlandish, it is likely that a player would eventually breach one of those covenants. Heck, NBA alum Jayson Williams killed a man just a couple years after retirement. Perhaps the NBA doesn't really want to the power to void contracts; owners would rather not wield such a veiled threat, lest players push for even more money so they can bathe in such a risky pond. And it's clear why the Players Association would rather keep this clause fuzzy. Status-quo bias has likely preserved the clause over a number of years.

[As a side note, it feels a bit surprising to contemplate that a real court could in fact pronounce on what the "moral turpitude" clause in NBA contracts actually means. I think that often, individuals living in an all-encompassing community (a university, the military, a pro sports team) tend to forget that ultimately they and their patron are subject to public laws, just like every other citizen and organization. The private entity may purport to lay down its own law and order, but ultimately, we are all part of one community. The only entity that US courts have consistently refused to regulate, oddly, is the legislature.]

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