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17th of October 2018

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Analyzing Celtics guard Jabari Bird's domestic violence arrest

Boston Celtics guard Jabari Bird faces multiple charges arising from a domestic violence incident that occurred last Friday in Bird’s Boston area apartment. Bird, who was arrested by the Boston Police Department, had been treated for undisclosed reasons at a Boston area hospital until his arraignment in Brighton Municipal Court on Thursday. The 24-year-old is accused of choking, kidnapping and assaulting a woman with whom he had a romantic relationship.

The alleged victim, a college student who has dated Bird, was allegedly strangled to the point of unconsciousness. Prosecutors from the Suffolk County District Attorney’s office also assert that Bird threw the alleged victim against the wall, dragged her by the ankles and blocked her multiple attempts to exit his apartment. The alleged attack occurred over a period of hours, portions of which time she hid under a bed and locked herself in a bathroom. She has been hospitalized with multiple injuries. Bird has pleaded not guilty to the charges and is being held in a holding cell on $50,000 bail.

While important details concerning the incident remain unknown at this time, the alleged victim, Bird, the Celtics and the NBA each has important legal interests in what occurs next.

The alleged victim

For the alleged victim, the immediate concern is healing from injuries. The specific type and extent of injuries are unknown, though the strangulation charge suggests that there are neck injuries. Strangulation injuries can range anywhere from temporary cuts and bruises on the neck to more life-altering damage to the voice box, windpipe, main arteries and, if oxygen was cut off, the brain. Emotional and psychological injuries are also common with victims of domestic violence.

The alleged victim will also be a crucial witness for prosecutors. She will be asked to explain what transpired in the encounter with Bird and the larger context of the incident—including the history of her relationship with Bird and the circumstances that immediately preceded the alleged attack.

The willingness of the alleged victim to participate in Bird’s prosecution will be integral to the case. Prosecutors are often hesitatant in domestic violence incidents if the alleged victim is unwilling to testify. This is because the burden for prosecutors is high: to gain a conviction, they must convince all of the jurors beyond a reasonable doubt of the defendant’s guilt. The degree to which the testimony of Bird’s alleged victim will be essential to prosecution is unknown. Along those lines, it is unclear if there is supporting physical and electronic evidence, such as surveillance camera footage, iPhone video, audio, texts and emails linking or separating Bird to the crime. Any communications between the alleged victim and Bird, and between them and other persons around the time of the incident, will be carefully reviewed by police and prosecutors.

Jabari Bird

Craig F. Walker/The Boston Globe via Getty Images

Jabari Bird

For Bird, the immediate concern is not his nascent NBA career but rather having candid conversations with his attorneys. In order for Bird’s attorneys to mount a successful legal defense, Bird will need to confide every relevant detail about the incident. He will also need to share candid insights and narratives about his relationship with the alleged victim.

Legally, Bird has a good deal to worry about. Convictions on any of the reported three charges could lead to him spending months or even years behind bars. Also, if there are so-called “aggravating factors”, such as if Bird was armed or if the victim suffered a “serious bodily injury” (which under Massachusetts law refers to permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death), the length of a potential prison sentence would increase substantially.

Turning to the charges, domestic assault and battery falls under Massachusetts General Law Chapter 265, Section 13A. Prosecutors will need to prove that Bird intentionally touched the victim without consent or did so recklessly and caused bodily injury. In the absence of aggravating factors, a domestic assault and battery charge is a misdemeanor and carries a potential penalty of up to two and half years in jail. However, the charge can be elevated to a felony if certain circumstances exist. For example, Bird could face a felony charge if the victim suffered serious bodily injury or was pregnant, or if Bird violated a restraining order to stay away from the victim. In any of those scenarios, Bird would face up to five years in prison upon conviction.

A charge for strangulation falls under Massachusetts General Law Chapter 265, Section 15. This is a crime that carries a potential prison sentence of five years. If there are aggravating circumstances, including if the victim suffered serious bodily injury or if Bird violated a restraining order, the potential penalty would jump to 10 years in prison.

Lastly, the kidnapping charge falls under Massachusetts General Law Chapter 265, Section 26. Under the law, “kidnapping” has a more expansive definition than how that term is commonly understood. Kidnapping can refer to unlawfully abducting someone—the conventional definition—or to unlawfully detaining a person, such as not letting someone leave an apartment, bathroom or other confined space. A conviction on kidnapping can carry a potential prison sentence of 10 years. If aggravating circumstances were present, such as if Bird was armed with a firearm and caused serious bodily injury, the minimum prison sentence would be 25 years and the maximum would become life.

While the above discussion suggests that Bird could face several years or even decades in prison, a more realistic assessment is that he would face far less time. For one, it does not appear that Bird has a criminal record. The absence of a criminal record would mean that Bird is viewed not as a repeat offender or as someone who “didn’t learn his lesson” the first time. Instead, he would be regarded more favorably—someone who made a criminal mistake for the first time. It is also possible that there are no aggravating factors; if that proves true, Bird would avoid the possibility of very lengthy prison sentences. Further, judges can sentence defendants concurrently (meaning the sentences run at the same time) rather than consecutively (meaning the sentences run one after the next, which would obviously be worse for the defendant). If Bird reaches a plea deal with prosecutors he might be able to negotiate a sentence that includes some combination of participation in a pretrial diversion program, probation, supervised release and community service in lieu of spending a long time behind bars. There are many factors at play, including quality of lawyering. Big picture, though: the maximum prison time Bird faces should not be viewed as anywhere near what he would actually face if convicted.

Whether Bird will be found guilty is another important consideration. We have yet to hear his legal defense or his side of the story (if he offers one). People have been falsely accused and Bird is entitled to the presumption of innocence. The fact that he is hospitalized is potentially relevant. It’s unclear if he suffered physical injuries, such as defensive wounds, or if he is being psychologically evaluated, or both. Depending on the circumstances, self-defense is a possible defense and is often raised by defendants in assault and battery cases. That said, it is notable that Bird did not appear to have suffered injuries when he appeared in court on Thursday. While his suit and other clothing may have obscured certain kinds of injuries, his head, face, neck and hands did not exhibit injuries and he walked normally.

Another potential defense could reflect Bird’s psychological state at the time of the incident. An “insanity” defense would acknowledge that Bird committed the act but contend that, due to a compromised mental state, he lacked legal responsibility. If his attorneys raised such a defense, they would claim that Bird could not understand right from wrong or was unable to discern consequences of his behavior. Such a defense is considered very difficult to prove, particularly if the defendant has no clinical history of mental illness. If Bird had been hospitalized for a mental health issue since Friday, that clinical history could become relevant to his defense.

Bird issued a statement on Thursday alluding to suffering a health problem. He noted that he is “taking some time away from the team as I deal with my legal and medical issues.” Bird’s reference to the word “medical” is an additional sign that he may plan to use a legal defense that incorporates mental health. This could also play a role in his contractual dealings with the Celtics and NBA (see below).

The Boston Celtics

The Celtics are clear stakeholders in Bird’s legal situation. Bird is an employee of the franchise. Although he is one of the least known players on the team (despite sharing the same last name as Celtics legend Larry Bird), Bird’s identity as a Celtics player publicly connects him—and his reputation—to the franchise. The team obviously does not want to be associated with players who batter their loved ones.

It remains to be seen whether the team decides to release Bird based on his arrest or waits to see if Bird is convicted or is found not guilty. The Celtics issued a statement on Thursday in which they expressed their “thoughts with the victim.” They also made clear the organization “deplores domestic violence of any kind" and is "deeply disturbed by the allegations against Jabari Bird.”

The Celtics drafted Bird out of California in the second round of the 2017 NBA draft. He has impressed the team with his development. Bird averaged 19 points per game last season with the Maine Red Claws of the G League and then dominated the competition during the recent Summer League. Bird is highly regarded for his defense and for having a well-rounded game. He is also, by all accounts, a good teammate and a hard worker.

In July, the Celtics signed Bird to a two-year, $2.94 million contract. Only the first year, where Bird will be paid $1.35 million, is guaranteed. Bird’s relatively modest contract reflects the small role he’s expected play on a team that features a formidable starting lineup of Kyrie Irving, Jaylen Brown, Gordon Hayward, Jayson Tatum and Al Horford and a deep bench. While Bird may only be a minor figure on the roster, it is a roster with a realistic chance of winning the NBA title. Bird’s future, then, seemed bright: he is a promising young player on a team that could go all the way.

That has changed. While the Celtics continue to conduct fact-finding as they await Bird’s legal process, the team may decide to cut ties with Bird. As noted above, Bird’s contract is structured so that $1.35 million is guaranteed in the 2018-19 season while his $1.59 million salary for 2019-20 is not guaranteed. If the Celtics waived Bird right now, it would be through the conventional process of releasing a player. Accordingly, the team would owe Bird his guaranteed amount ($1.35 million). Such an amount would continue to count against the team for salary cap and luxury tax purposes.

However, depending on how the legal process plays out, the Celtics might eventually construe the “guaranteed” portion of Bird’s contract as no longer guaranteed. First, under Paragraph 16 of the uniform player contract, an NBA team has the right to terminate a player’s contract if he fails 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.” Paragraph 16 stipulates that the termination process requires that the player be placed on waivers; if unclaimed, all obligations of the team to pay the player compensation “shall cease on the date of termination.” A player whose contract is terminated under this procedure has the right to challenge it before a grievance arbitrator, who is neutral. Exhibit 2 to the uniform player contract conduct also notes that base pay shall not be paid if a player is convicted, pleads guilty or pleads no contest to any felony.

Given that Bird is the likely “15th man” on the team’s roster and given the disturbing aspects of the accusation, the team might decline to give him the benefit of the doubt. As a signal that the team could be moving in that direction, the Celtics reportedly worked out free agent guard Marcus​ Georges-Hunt on Tuesday. On the other hand, the team may want to learn more facts—including Bird’s explanation, if he has one—before letting Bird go and thus avoid the perception of rushing to judgment.  

Also, the last time the Celtics had a player accused of domestic violence, the team kept him. In 2013, the Celtics suspended forward Jared Sullinger—who had been charged with assault and battery and intimidation of a witness after he allegedly pinned his girlfriend to a bed and floor—for one game. One important difference: the Celtics punished Sullinger only after the charges were dropped and only after Sullinger acknowledged an error in judgment; with Bird, the Celtics may seek a faster resolution. Also, the world is different in 2018 than in 2013. The #MeToo movement has amplified public awareness about the mistreatment of women by abusive men and accordingly led employers to become less tolerant of employees accused of such wrongdoing.

Rather than cutting Bird—which would have the seemingly undesirable consequence of paying him a lot of money right after he is accused of horrendous conduct—the Celtics appear inclined to monitor Bird’s interaction with the NBA and National Basketball Players’ Association’s collectively bargained domestic violence policy. Under Article 16 and Exhibit F of the CBA (discussed below), the joint policy takes priority over any team policy. In other words, unless the Celtics want to pay a man accused of savagely beating up a young woman $1.35 million, the team must wait to see how the NBA and NBPA investigate and judge Bird. The Celtics statement on Thursday expresses this very point: “Pursuant to Domestic Violence Policy in the NBA's labor agreement, matters of this kind are handled by the League Office, not the team, and so the Celtics will be working with both the league and local authorities to assist in their ongoing investigations.” Further, if the NBA punishes Bird, the “one penalty” clause detailed in the CBA would kick in: Under Article VI, the NBA and a team shall not discipline a player for the same act or conduct.

The NBA

The NBA and NBPA have negotiated a joint policy on domestic violence, sexual assault and child abuse. The policy, which went into effect in July 2017, is contained in Exhibit F of the CBA. It stipulates that domestic violence acts “are prohibited at all times and regardless of where they occur.” The policy defines “domestic violence” to encompass many kinds of actual violence and threatened violence, including “any actual or attempted violent act that is committed by one party in an intimate or family relationship against another party in that relationship. Such an act may include physical assault or battery, sexual assault, stalking, harassment, or other forms of physical or psychological abuse. It may also include behavior that intimidates, manipulates, humiliates, isolates, frightens, terrorizes, coerces, threatens, injures, or places another person in fear of bodily harm.”

The policy also charges a “policy committee” with important powers, including the creation of a “treatment and accountability plan” for a player implicated in domestic violence. Such a plan may require the player to submit to psychological tests and other evaluations, and also attend counseling sessions. A player’s failure to adhere the plan can lead to fines and suspensions. In terms of the composition of the policy committee, it consists of two persons from the NBA, two from the NBPA and three independent experts with expertise in domestic violence, sexual assault and/or child abuse. Committee decisions are made by a majority vote and are final, binding, and unappealable.

In addition to the policy committee potentially reviewing Bird’s situation, the NBA itself can, almost certainly will, investigate the allegations against Bird. The NBA’s investigation can include the use of third-party resources such as outside legal counsel, outside investigators and other individuals with relevant expertise. Per the policy, Bird is expected to cooperate fully with the NBA, unless he reasonably believes it would compromise his defense in the criminal prosecution. Cooperation would involve Bird agreeing to be interviewed by NBA investigators with a representative from the NBPA present; if Bird refuses without good reason he would face immediate suspension. Bird’s attorneys might object to the NBA interview out of fear that the interview transcript could be vulnerable to a subpoena by prosecutors.

Meanwhile, NBA investigators will likely try to speak with the alleged victim and other witnesses. The policy makes clear that should Bird attempt to enter into any agreement with the alleged victim or witnesses—such as paying them for their silence—the NBA would construe that type of transaction as uncooperative conduct and grounds for a suspension.

During the investigation, commissioner Adam Silver can decide to place Bird on what’s called “administrative leave”. Such leave is tantamount to a paid suspension. In assessing whether to place Bird on leave, Silver would weigh the fact that Bird has already arrested and arraigned. This means law enforcement believes Bird is guilty and thus the accusations are more credible than if they arose only in a civil lawsuit or other accusation.

Silver will also consider the severity of the allegations, the extent of injuries suffered by the alleged victim, the potential reputational damage to the NBA if Bird were permitted to keep playing and other factors that Silver deems relevant. If Bird is placed on administrative leave, he would continue to be paid by the Celtics and receive other employment benefits such as health care and pension accrual. It would also be permissible for Bird and the Celtics to seek the NBA’s permission for Bird to participate in practices and workouts while on leave. However, given that Bird will soon be prosecuted, the Celtics might eschew that option and keep their distance from Bird. In theory, Bird could challenge being placed on paid administrative leave by filing a grievance with the league’s grievance arbitrator. Such a challenge would likely fail given that the commissioner would appear well within his powers to place Bird on leave.

If the league’s investigation leads to Silver finding that Bird violated the joint policy on domestic violence, Silver could fine, suspend or ban Bird from the NBA. To be sure, a ban would be unlikely, particularly since the policy mentions repeat offenders as subject to enhanced discipline and there is no known record of Bird being a repeat offender with the NBA. In determining Bird’s punishment, Silver would consider both aggravating and mitigating factors. Those factors would include the use of violence, the use of weapons in the assault, evidence of self-defense, acceptance of responsibility and Bird’s cooperation in the investigation. Bird should also be mindful that any conviction, guilty plea or no contest plea would conclusively establish a violation of the joint policy on domestic violence. If Bird is suspended after already being placed on administrative leave, his time on leave would be credited toward the suspension so long as he remits to the NBA the applicable portion of his salary that he received while on leave.

Although every domestic violence incident is unique and not necessarily comparable, it’s worth noting that in February the NBA suspended center Willie Reed for six games under the joint policy on domestic violence. Reed, who played for the Detroit Pistons at the time, was suspended on account of his 2017 arrest for misdemeanor battery. The arrest followed an incident where Reed was accused of twisting his wife’s arm, grabbing her by the hair and knocking her to the ground during an argument in which she told him she wanted a divorce. Reed resolved the charge by entering a pretrial intervention program. The NBA determined that a six-game suspension was appropriate on account of the “outcome of the criminal matter, Reed’s voluntary participation in counseling [and] the court-mandated program, among other factors.”

Reed, 28, was the first player suspended under the joint policy. The NBPA initially filed a grievance over Reed’s suspension, most likely out of concern over precedent, but soon thereafter dropped the challenge. Reed only served one game of the suspension before being traded by the Pistons to the Chicago Bulls and then immediately waived. Should he rejoin an NBA roster, he would need to sit out five games.

The potentially complicating role of mental health

As noted above, Bird may have been hospitalized over the last week for mental health reasons. If that proves true, a separate clause in the CBA, Article XXII, would become relevant. Article XXII concerns player health and wellness. It dictates procedures related to the mental health of players and their capacity to play. It is too early to forecast whether and how Article XXII might connect to Bird’s situation, but it is another reason for the Celtics and NBA to proceed cautiously.

The Crossover will keep you updated on developments in the Bird matter.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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