As suggested as a possibility in the original story below, DeMarcus Cousins has been charged in Mobile, Ala., with harassing communications. The charge appeared on the Mobile municipal county website on Thursday. This offense involves using a phone or other communications device to harass another person, including by lewd or obscene language. Harassing communications is a class C misdemeanor—the lowest of three misdemeanor levels in Alabama. It is punishable by a maximum of three months in jail.
However, for a person without a criminal record, the charge is more likely to be resolved without the imposition of jail time. Chances are that Cousins, who does not appear to have a criminal record, won't be jailed if he's found guilty or if he reaches a plea deal. Cousins is also innocent until proven guilty.
The charge provides more certainty that Cousins is the male voice on the recording. He would not be charged unless the Mobile Police Department has evidence that he is the person on the recording. As explained below, expect the NBA to take time to evaluate whether the recording and now criminal charge warrant a punishment.
According to a 22-second phone call recording obtained by TMZ, Los Angeles Lakers center DeMarcus Cousins warned his ex-girlfriend, Christy West, that he would “put a bullet through” her “f---ing head” if she forbid their seven-year-old son, Amir, from attending a wedding between Cousins and his new girlfriend, Morgan Lang. The recording was allegedly made last Friday, one day before the wedding would take place in Atlanta.
Levi Edwards of Al.com reports that West filed a police report with the Mobile (Alabama) Police Department over the alleged threat. Edwards also notes that West previously sought court protection from Cousins on account of his alleged verbal and physical abuse.
Both the NBA and Lakers issued statements on Tuesday indicating that they are investigating these developments. They’ll refrain from further comment until they have conducted fact-finding. Cousins has not yet issued a statement.
Assessing the reliability of the recording
The controversy surrounding Cousins is based on a recording that was obtained by a media company. Scrutinizing the recording is therefore a crucial first step.
To that end, the league and Lakers will attempt to authenticate whether the recording is genuine. This will require efforts to answer several questions. Is the male voice heard on the audio definitely that of Cousins? Is the female voice definitely that of West? Has the recording—which seems to begin in the middle of a conversation that lasted longer than the available 22-second clip—been edited in any way? If it has been edited, were important portions of the conversation cut, spliced or otherwise modified?
It is not unprecedented for recording edits to influence public perception of a pro athlete. This recently occurred in a much-publicized recorded conversation between Kansas City Chiefs wide receiver Tyreek Hill and his former fiancée, Crystal Espinal. The first published version of the recording omitted relevant context that would later become known. Given the many tools available to manipulate a recording, the NBA and Lakers will likely proceed cautiously in verifying not only that Cousins is heard on the recording but that the recorded words are accurately depicted.
Second, it’s unknown if the recording was lawfully created. Eleven states are “two-party” states for purposes of recordings. In a two-party state, a recording of a telephone call requires the consent of everyone on the call. In California, where Cousins has played most of his NBA career, it is a crime to record another person without their consent. Other two-party states include Florida, Illinois and Massachusetts. If a two-party state law applies to the alleged call between Cousins and West, and if Cousins did not consent to the recording, West would have potentially run afoul of the law.
Alabama, where Cousins has spent much of his life and where West filed a police report, is a one-party state. So too is Georgia, where the wedding between Cousins and Lang took place. The federal wiretap act is also one-party. In a one-party setting, so long as either party consents, the recording is lawful. Available information suggests that the 22-second recording was made in Alabama and that Cousins may have been in Georgia during the call. However, neither of those points is confirmable yet.
The NBA does not need to rush an investigation into a summer incident involving an injured player
When an NBA player is accused of crimes and other harmful acts, the league and the player’s team often need to quickly determine whether the player should be separated from his team.
Last September, Jabari Bird was preparing for the start of Boston Celtics training camp when he was accused of choking, kidnapping and assaulting a woman. It would take six months for the criminal justice process to play out, with Bird ultimately negotiating a plea deal. Until his plea, Bird was presumed innocent under the law.
Yet neither the Celtics nor the NBA wanted Bird partaking in team activities while he stood accused of heinous crimes. Enter the NBA and National Basketball Players’ Association’s joint policy on domestic violence, sexual assault and child abuse. The policy, as contained in Exhibit F of the collective bargaining agreement, allowed for Bird to be placed on administrative leave—essentially a paid suspension that separated Bird from the Celtics.
The Cousins situation is very different. Obviously, Cousins hasn’t been charged with a crime nor is he accused of physically hurting anyone—the accusation concerns a verbal threat. It’s also important to note that Cousins is currently injured. Two weeks ago, he tore the ACL in his left knee. The injury could keep Cousins sidelined for the entire 2019-20 season. It’s a safe bet that he won’t be participating in basketball activities for many months. Therefore, neither the NBA nor the Lakers need to worry about the perception of the Lakers suiting up a player who is accused of a verbal threat.
Also, the controversy surrounding Cousin is occurring in August, one of the slowest months on the NBA calendar. While some players work out informally with their teams over the summer, NBA training camps don’t begin until Sept. 28. Therefore, Cousins doesn’t need to be “separated” from the 2019-20 Lakers squad since it will be a month before that squad takes the court.
Cousins will need to cooperate with the NBA, but West does not
Particularly given that the NBA and Lakers have ample time to investigate, they’ll likely ask to speak with both Cousins and West. Conversations with both would provide important context and understanding of the remarks made during the call.
Unless Cousins has a “reasonable apprehension of criminal prosecution,” the CBA obligates him to cooperate fully with league investigations. In fact, if he refuses to cooperate in a domestic violence investigation, the league can fine him $10,000 a day and also infer guilt from his non-compliance.
Although Cousins will probably cooperate, he could argue that he has a reasonable apprehension of criminal prosecution. It is a class C misdemeanor crime in Alabama to engage in “harassing communications.” This crime refers to using a phone or other communications device “in a manner likely to harass or cause alarm.” Under Alabama law, a class C misdemeanor is punishable by a maximum of three months in jail. However, such a low-level offense is more likely to be resolved without any jail time.
Unlike Cousins, West is under no obligation to speak with the NBA or the Lakers. She has no contractual relationship to either. Both the NBA and Lakers are private entities and thus lack subpoena power to compel a witness to cooperate. However, if West finds it advantageous, she might voluntarily agree to speak with league and Lakers investigators.
The NBA’s definition of “domestic violence” includes verbal threats
Under the joint policy, threatening violence against another person can constitute domestic violence. In other words, a physical act of violence is not required.
To that point, “domestic violence” is defined as “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.”
Taking his words at face-value, Cousins warning West that he was “going to make sure” he put a “bullet” in her “f---ing head” could be classified as behavior that “intimidates, frightens and terrorizes.” It could also be regarded as an attempt to place West in fear of bodily harm and inflict phycological abuse upon her. The fact that West filed a police report suggests she felt concerned.
At the same time, the NBA will consider the context of the threat. It arose during a phone conversation between estranged parents who appear to disagree about a parenting matter. To that point, the league will evaluate each word expressed over the 22 seconds and how both the man and women reacted to the words. Was the threat an intemperate remark or was it an actual threat of violence? Here is a transcript:
Man: "I'm gonna ask you this one more time before I take it to another level"
Woman: “Go shoot the ball”
Man: “Can I have my son here, please?”
Woman: “Go shoot the ball”
Man: “Can I have my son here, please?”
Woman: “No, he is not coming”
Man: “I’m going to make sure I put a bullet through your f---ing head.”
The NBA will also judge Cousins in light of his past behavior. While Cousins, 29, has attracted controversies over his nine seasons in the NBA—including a suspension for confronting San Antonio Spurs announcer Sean Elliott and a lawsuit over alleged involvement in a nightclub brawl—it does not appear that he has a criminal record. Also, the NBA has not previously suspended him for domestic violence acts.
The Crossover will keep you updated on the Cousins situation.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.