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  • Markelle Fultz will likely soon resume his NBA career, but the point guard's latest shoulder development could foreshadow impending legal implications.
By Michael McCann
November 20, 2018

The strange saga of Philadelphia 76ers guard—and former number one overall pick—Markelle Fultz has taken a potentially litigious turn.

The Athletic D.C.’s editor-in-chief, David Aldridge, reports that “at the direction of his attorney,” Fultz will no longer participate in team practices or games until after a shoulder specialist has evaluated and cleared Fultz early next week. Aldridge’s reference to Fultz’s “attorney” is revealing because the attorney, Raymond Brothers, doubles as Fultz’s agent. Aldridge’s depiction of Brothers as Fultz’s “attorney” instead of as his “agent” is intentional. 1. It signals that Brothers and Fultz regard the situation as one that could have legal implications.

The question then becomes why a visit to a shoulder specialist—by itself, an unremarkable development—might trigger legal consequences. There are several possibilities.

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Fultz’s complex relationship with the 76ers

Fultz, whose playing time has diminished over the last few games, may have reason to believe that the 76ers will eventually regard his forthcoming absence as unauthorized. For now, that is not the case. On Tuesday, 76ers head coach Brett Brown told media that the team supports Fultz. However, and perhaps revealingly, Brown distinctly expressed surprise that Fultz had any need for shoulder treatment and Brown added he “didn’t know” that Fultz was even hurt. Alternatively, Fultz may have concerns about how team officials will depict his absence in their forthcoming interactions with media.

Either way, notice that it is Brothers, and not Brown or a 76ers medical official, who is establishing the parameters for when Fultz will be able to play. Typically, a team will issue a statement indicating a player’s availability. Through his attorney, Fultz has essentially taken that function away from the team. It’s unclear how long the team will be okay with such a dynamic.

This is nothing new for the 76ers. Of great frustration to both team officials and Fultz himself, Fultz’s right shoulder has been a source of trouble for a while. That wasn’t always the case. Prior to the NBA draft in June 2017, the 76ers believed that Fultz joining stars Joel Embiid and Ben Simmons would constitute a formidable “big three” for years to come. Banking on this projection, the team traded away the third overall pick and a future first round pick to the Boston Celtics, who through the lopsided Paul Pierce and Kevin Garnett trade possessed the Brooklyn Nets’ lottery-winning pick. At the time, there were no indications that Fultz, who had played one season at the University of Washington without incident, had any worrisome health issues.

Yet it didn’t take long for Fultz to describe his shoulder as problematic and as adversely impacting his play. During the preseason Fultz complained of shoulder pain, tightness and soreness. Neither a cortisone shot nor a drainage of fluid from the shoulder seemed to help him much. In October 2017, Fultz was diagnosed with “scapular muscle imbalance.” Such an ailment refers to where muscles connected to the shoulder blade are imbalanced, which in turn disrupts arm movement. Dr. David Chao, an orthopedic surgeon who served as San Diego Chargers team physician, authored a column in the San Diego Tribune in which he explained Fultz’s injury. Chao noted that the ailment can be corrected with physical therapy, but that surgery is also possible.

Fultz opted for rehabilitation and therapy, but it was to no avail. He also altered his shooting mechanics in hopes of minimizing the physical impact of the imbalance. Such a maneuver, however, created a new set of problems: it led Fultz to change what had been a reasonably proficient shooting motion into an inconsistent and ineffectual form. Fultz would play in only 14 of the 76ers’ 82 regular season games in ’17-’18. His stats were worse than most of the other players selected in the lottery and well behind those of the four other players who were drafted after him in the top five.

But one season, especially a rookie season, doesn’t make an NBA career. With that in mind, a healthier Fultz hoped to rebound in ‘18-‘19. To advance that goal, Fultz spent much of the summer working with famed shooting coach Drew Hanlen on rebuilding his shooting form. Fultz came to camp in September seemingly optimistic about his future. Brown also placed confidence in Fultz by inserting him into the starting lineup.

Unfortunately for Fultz, his ineffective and sometimes awkward-looking shooting has resurfaced. Also, with the 76ers’ recent acquisition of Jimmy Butler and with T.J. McConnell on the roster, Fultz now finds himself fighting for minutes off the bench. Meanwhile, according to HoopHype’s Alex Kennedy, Fultz and Hanlen are no longer working together or even speaking with one another. Kennedy reports that Fultz and Hanlen saw their relationship “deteriorate” from late October into mid-November. During that stretch, Hanlen opined on Twitter that Fultz is “still not healthy.” That statement could suggest that Fultz’s shoulder woes remain although it’s not clear which type of health condition Hanlen was referring to (he has since deleted the tweet).

The 76ers have been patient with Fultz and Brown expressed support on Tuesday. But perhaps their patience is running out. Brown seemed surprised that Fultz believes he is hurt. It’s possible the 76ers believe that Fultz isn’t playing well because he is isn’t well. If Fultz continues to struggle, it’s not beyond the realm of possibilities that the 76ers could ask Fultz to work out his shooting issues with the team’s G League affiliate, the Delaware Blue Coats.

Fultz, however, is well within his rights to seek medical explanations for not playing as well as expected. Indeed, he has the collectively bargained right to seek an opinion from his own physician. In many cases the team is obligated to pay for a second opinion.

If the 76ers and Fultz disagree about whether he is healthy enough to play, it’s conceivable that they could attempt to resolve the matter through collectively-bargained “Fitness-to-Play Panel.” Article XXII of the CBA instructs that physicians can be empaneled to address a dispute over whether a player with a health condition is medically able and medically fit to practice and play basketball in the NBA. These panels are primarily designed to study the impact of life-threatening conditions—such as the blood clotting issue faced by Chris Bosh who, unlike Fultz, failed his team physical—and their accompanying salary cap ramifications and insurance policy implications. However, the language of Article XXII suggests that a Fitness-to-Play Panel could be formed to study less dire health matters. It would be premature to predict that such a panel will be formed here. Yet the steps Fultz and the 76ers take in advance of any dispute resolution process could prove influential as those steps would constitute relevant evidence.

Alternatively, Fultz may be unhappy with his medical care from the 76ers. It’s unclear if Fultz first sought treatment from the 76ers medical staff before reaching out to a specialist. If Fultz believes that his medical care is substandard and could provide grounds for a legal action, Fultz announcing that he would see his own specialist could signal to the team how he feels.

As another source of intrigue, there remains uncertainty as to the origin of Fultz’s shoulder woes. There has been uncorroborated speculation that Fultz might have suffered the injury in a motorcycle accident that occurred at some point in 2017. If such speculation is true and if the injury occurred after Fultz signed with the 76ers on July 8, 2017, the 76ers would arguably have grounds to suspend Fultz or even void his contract. The NBA’s uniform player contract expressly prohibits players “driving or riding on a motorcycle or moped or four-wheeling/off-roading of any kind” without the written consent of the team. However, a reasonable interpretation of this provision is that if the 76ers previously learned of the cause of Fultz’s injury and decided not to punish him at that time, the team probably waived its chance to do so.

Plus, it seems unlikely that the 76ers would try to escape its contract with Fultz by cutting ties with him rather than trading him. While Fultz’s trade value has no doubt plummeted, he is still only 20 years old and still one year away from being the first overall pick in the NBA draft. It stands to reason that there may be a team or two that believes a fresh start would be just what the doctor ordered for Fultz.

Getty Images

Fultz’s apparent discord with Hanlen

As detailed above, Fultz trained with Hanlen over the summer and Fultz came to camp appearing more confident. Yet as Fultz’s shooting woes have only persisted, the two men have apparently parted ways. Hanlen also tweeted that Fultz was not healthy, though he didn’t explain how so and also deleted the tweet. For his part, Fultz—who has played in all 19 of the 76ers regular season games—downplayed Hanlen’s tweet by agreeing with Brown that he was healthy enough to play.

It’s possible that Fultz and Hanlen may be in conflict relating to Hanlen no longer working with Fultz or relating to Hanlen’s tweet. The simplest such scenario would be if Fultz and Hanlen disagree over money owed to Hanlen or contest the contractual impact of Hanlen no longer working with Fultz. Fultz’s health and availability could have bearing on such a dispute.

Another possibility is that the Fultz regards Hanlen’s tweet as violating his medical privacy. The Health Insurance Portability and Accountability Act of 1996, which is better known as HIPAA, prohibits persons who are in regular contact with medical files from disclosing the content of those files without patient consent. However, as an independently-based shooting coach rather than a health care professional, Hanlen probably isn’t a “covered entity” under HIPAA. Even if he is, HIPAA doesn’t contain a private right of action, meaning that Fultz couldn’t sue Hanlen on a HIPAA related claim (only the U.S. Department of Health and Human Services enforces HIPAA and does so by imposing fines and warnings).

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Possible endorsement contract and insurance implications

The most likely future for Fultz is that he soon resumes his NBA career. Perhaps it would be best for Fultz to gain a fresh start with another NBA franchise, especially one without a roster as stacked as the 76ers. Yet whether in Philly or elsewhere, Fultz’s shoulder problem seems unlikely to be a career-ender. And if the shoulder problem runs such a risk, Fultz would probably first opt for surgery to see if that can correct it.

Still, if Fultz believes his health problem could prove career-altering, there may be contractual considerations. In addition to his guaranteed 3-year, $25.1 million contract with the 76ers, Fultz has signed a multi-year, multi-million dollar endorsement deal with Nike. He may also have purchased insurance in the case of a career-ending injury. The obligation of Nike and an insurance company to pay Fultz could be impacted by the nature of his injury and whether there is agreement as to it precluding him from playing.

Yet for now, and as has often been the case in Fultz’s nascent NBA career, it’s perhaps best to “let the mystery be.”

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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