The Work

January 6, 2010 3:47 PM

The Agent Zero Chronicles: A Gun-Toting, Punch-Throwing Look at Sports in the Law

Posted by Zach Lowe

UPDATE: 5:15 p.m.: That was fast. NBA Commissioner David Stern has suspended Arenas indefinitely. A statement from Arenas and his lawyer at O'Melveny is forthcoming.

We can't think of many clients involved in possible criminal activity that would be more frustrating to represent than Gilbert Arenas, the quirky Washington Wizards star who has admitted to bringing four unloaded guns into the team locker room just before Christmas as part of what Arenas called a practical joke. 

Much about the story is still unknown, though it seems clear now that initial reports in the New York Post that Arenas and a teammate (Javaris Crittenton) drew guns on each other in the locker room were false. But something happened between them involving a gambling debt, and Arenas did bring the guns into a place where he was not supposed to have them. The NBA's commissioner, David Stern (a former Proskauer Rose lawyer), will almost certainly suspend Arenas, and the Wiz guard could face criminal charges for violating Washington, D.C.'s strict handgun laws. 

Escorting Arenas through all of this is O'Melveny & Myers partner Kenneth Wainstein, who joined O'Melveny last year after 19 years in various positions in the Justice Department and a brief stint as a homeland security adviser to President George W. Bush. 

Wainstein, according to his bio, is a veteran of sensitive cases, including high-profile white-collar matters such as the prosecution of an executive accused of bribing former U.S. congressman Randall "Duke" Cunningham.

But we'd wager Wainstein has never represented anyone like Arenas, whose blog (now defunct) became a hit because of his amazing transparency and, um, offbeat sense of humor. Arenas has already had multiple Twitter meltdowns in which he criticized press coverage of the gun incident and joked about everything from midgets to whether his sense of humor would go over well in jail. Ahem. 

Things got even stranger Tuesday night, when Arenas and his teammates orchestrated a pregame routine that involved Arenas miming the act of shooting his teammates as they stood in a circle around him. (Arenas has Tweeted that the routine was a joke, and that his teammates encouraged him to do it as an homage to a scene in Oliver Stone's football movie "Any Given Sunday.")

We asked Wainstein for his reaction to Arenas's antics, but he wouldn't bite. While he declined to comment on the merits of the case, he did say that this is his first foray into sports law and that he connected with Arenas through a referral from a third party. (Wainstein declined to say exactly who made the connection.)

A source familiar with the case tells us that Arent Fox partner John Nassikas is representing the Wizards in connection with the Arenas matter. Nassikas did not return messages seeking comment, but it would not be a surprise if the Wiz turned to Arent Fox; the firm has represented the team and its late owner, Abe Pollin, for decades, including in the development of the team's downtown arena, the MCI Center, according to the firm's site. (Partner David Osnos has led most of Arent Fox's work with the team.)

An interesting legal angle to watch: The standard NBA player contract allows teams to void a deal if a player's conduct fails to conform "to standards of good citizenship, good moral character, or good sportsmanship," according to Sports Illustrated. Arenas is scheduled to earn about $90 million through 2014 under the terms of a contract widely considered among the most bloated in the league. The Wizards would surely love to void it. But the player's union has already said it will file suit to stop the Wizards from voiding Arenas's deal, according to SI. Wainstein declined to comment when asked whether Arenas has retained other O'Melveny lawyers for contractual issues. 

Elsewhere in the world of sports and the law:

• O'Melveny is at the center of the sports world's other hot legal dispute: The battle between the world's two best boxers, Manny Pacquiao and Floyd Mayweather, Jr., over various issues related to their proposed megafight scheduled for mid-March in Las Vegas. O'Melveny partners Daniel Petrocelli and David Marroso are advising Pacquiao and the company that promotes his bouts, Top Rank, in several disputes with Mayweather. The fighters have settled most of their money issues, and the crux of the conflict now focuses on whether they can agree to drug-testing procedures before the fight. 

Mayweather, who has never lost a fight, initially asked for random blood tests leading to the fight. Pacquiao would not agree, and Mayweather's camp made comments about the possibility that Pacquiao, a demigod in his native Philippines, might be using performance-enhancing drugs. Pacquiao countered by suing Mayweather and his promoter (Golden Boy) for defamation; Pacquiao claimed he wouldn't agree to random blood tests because they might weaken his body before the fight. 

Pacquiao has since agreed to a series of a three blood tests--two before the fight (the second is to take place no later than 30 days before the fight date) and one immediately afterward. 

The two sides enlisted Daniel Weinstein, a retired federal judge, to mediate the case outside of court. Weinstein is a good pick. In 2007 he mediated a dispute between Golden Boy and Top Rank over the rights to promote Pacquiao's fights. The two sides reached a settlement under which Top Rank promotes Pacquiao and shares a slice of the profits with Top Rank, according to

Petrocelli, a lifelong boxing nut, represented Top Rank in that case as well, he says. Petrocelli's family had a preexisting relationship with Top Rank chief Bob Arum's family, and that initially helped Petrocelli (and O'Melveny) grab the Top Rank business, he says. 

Lawyers for Mayweather and Golden Boy could not be immediately located.

On behalf of all sports fans, we urge both sides to make this fight happen. We might actually pay to watch it, which would be the first time we've done that for any fight since Mike Tyson bit off a chunk of Evander Holyfield's ear.

Some trivia for the boxing nuts among our readers: Petrocelli is also representing Antonio Margarito, a former champion in several weight classes currently under suspension in California after ringside observers found a substance similar to plaster of Paris in his hand wraps before a fight last January. The finding gave rise to suspicions that Margarito meant to cheat in that fight and might have done so in past bouts; Margarito has claimed innocence, and Petrocelli has appealed the California suspension. 

In case you're wondering, Petrocelli (who successfully prosecuted the wrongful civil case against O.J. Simpson on behalf of the family of Ron Goldman) is a lifelong Muhammad Ali fan and listened to Ali's fights on the radio when he was a kid growing up in New Jersey. 

• Concussions have been all over the sports news lately, between the firing of Texas Tech University football coach (and lawyer!) Mike Leach over his alleged treatment of a player suffering from postconcussion syndrome and congressional committee hearings Monday about whether football-related concussions can cause lasting brain damage.

The National Football League has historically downplayed the connection between on-field concussions and brain damage despite mounting evidence that such a connection exists. But the league has done a near-180 over the last few months, starting in late 2009 when two NFL-backed experts who had downplayed the lasting effect of concussions resigned from the league's committee to study head injuries. (They were also accused of changing the conclusions of an academic journal article about concussions without telling their coauthors, but that's another story.)

At about the same time, a league spokesman issued a statement declaring that it is "quite obvious" concussions can lead to "long-term problems," and the league this week announced a new partnership with two new independent sources who will review any league-sponsored studies, according to The New York Times.

This is exactly the sort of preemptive action Jackson Lewis suggests the NFL, sports teams. and other entities should take in tackling the concussion issue. In a report the firm released this week, its lawyers recommend setting clear guidelines for how to treat players showing signs of a possible concussion. Such a process isn't only best for athletes; it also helps their employers and leagues avoid litigation. 

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