If Markelle Fultz Takes Action, 76ers Could Be Liable For Latest Shoulder Injury

Michael McCann

After multiple medical examinations, Philadelphia 76ers guard Markelle Fultz has been diagnosed with Neurogenic Thoracic Outlet Syndrome (TOS). According to the Cleveland Clinic, TOC refers to “a group of disorders that occur when there is compression, injury or irritation of the nerves and/or blood vessels (arteries and veins) in the lower neck and upper chest area.” Fultz, who hasn’t played in a game since the 76ers defeated the Phoenix Suns on Nov. 19, will be out indefinitely. His course of treatment will center on physical therapy in hopes that PT relieves compression and irritation in the area between his lower neck and upper chest. There is no indication that surgery is anticipated.

It appears that Fultz and his representatives, including agent/attorney Raymond Brothers, and the 76ers are in agreement about the TOS injury and the recommended course of treatment. There had been uncertainty as to whether such an agreement would be found. Upon the advice of Brothers, Fultz took the unusual step of declaring himself ineligible to play or practice. Fultz did so, Brothers explained, because he thought he was injured. Fultz then sought medical opinions outside of those provided by the 76ers. Fultz took this step despite the fact that his employer, the 76ers, believed he was healthy. Indeed, Fultz’s decision to remove himself from the 76ers’ list of available players stunned coach Brett Brown, who told media that he “didn’t know” that Fultz was even hurt.

The latest chapter in Fultz’s peculiar NBA saga

Fultz has been the source of much debate since the 76ers selected him first overall in the 2017 NBA draft. The debate has centered around two themes: mysterious health issues and disappointing performance.

Fultz played in only 14 of the 76ers’ 82 regular season games in ’17-’18 due to “scapular muscle imbalance,” an imbalance of the muscles connected to the shoulder blade. Now out indefinitely after playing in the 76ers’ first 19 regular season games, Fultz could miss much, if not all, of the remainder of the ’18-‘19 season.

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Besides health issues, Fultz has shot the ball poorly and struggled in other aspects of the game. He has done so while battling unfavorable comparisons to Boston Celtics star wing Jayson Tatum, whom the Celtics selected with the third overall pick in the 2017 NBA draft. The Celtics and 76ers had swapped first-round picks, with the 76ers also sending over a 2019 first-round pick, in what has morphed into a historically lopsided trade. Some fans are skeptical of Fultz’s injuries. They believe that he has exaggerated ailments as a cover for being exposed as less talented than expected or for suffering some sort of mental block or “the yips.”

The diagnosis of Fultz with TOS should dispel suspicions that the 20-year-old former University of Washington Star is faking an injury. He is genuinely hurt. He was evaluated by top physicians and no licensed physician would agree to falsely diagnosis him (or any patient) given the ethical and legal consequences of doing so.

Also favorable for Fultz is that both he and the 76ers have the same objective: get Fultz healthy. Even if the 76ers no longer view Fultz as part of their long-term plans, their ability to trade him for a meaningful return will depend on whether other teams regard him as healthy. As displayed in the complicated 2017 trade negotiations between the Celtics and Cleveland Cavaliers over an injured Isaiah Thomas, teams are very scrutinizing of players’ health before a trade is approved. If Fultz is hurt or is perceived as hurt, his trade value would plummet. If Fultz is viewed as sufficiently healthy, other teams will remember that he’s only 20-years-old and is only one year removed from being the first overall pick. Those are two very different Fultzs and two very different trade assets.

Will Fultz view the 76ers as negligent?

While Fultz and the 76ers appear to be on the same wavelength at the moment, their strained relationship could return if Fultz doesn’t recover.

Consider Fultz’s perspective. He and Brothers are likely wondering why the 76ers' medical staff, as well as outside physicians and specialists retained by the team, failed to diagnosis him with TOS. Fultz and Brothers might scrutinize the reasonableness of the medical approach taken by the team. Were the proper exams conducted? Were medical test results accurately read and interpreted? Did 76ers officials express doubts about Fultz being hurt when they conversed with medical staff? Did those officials signal frustration that an injured Fultz makes them “look bad” and did such frustration push medical and training staff to press Fultz to return too soon? Did training staff, mindful that they are partly judged (fairly or unfairly) by the availability of players, simply push Fultz to play through injuries? These are questions—some of which are intentionally loaded—that would go to whether the 76ers complied with relevant standards of medical practice. A failure to comply with those standards could trigger a malpractice or negligence lawsuit.

The 76ers would argue that health care professionals retained by the team to treat Fultz provided more than adequate care. The team might also insist that any malpractice lawsuit brought by Fultz would be barred by workers’ compensation insurance. Workers’ compensation is a system whereby injured employees are swiftly provided compensation for certain types of workplace injuries. In exchange, those employees relinquish the right to sue over their injuries. With varying success, health care professionals retained by sports teams have used workers’ compensation to repel player injury lawsuits.

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Likewise, Fultz and Brothers are probably wondering why Brown and his coaching staff played Fultz when he was hurt. Obviously, Brown wasn’t aware that Fultz suffered from TOS. However, that invites the question of why Brown—a seasoned coach—didn’t detect that one of his players was injured.

Will the 76ers try to void Fultz’s contract?

Alternatively, consider the 76ers’ perspective. The team might contend that Fultz failed to inform officials about his injury. Remember, Brown claimed that Fultz’s injury came as a complete surprise to him. Brown appears to have been assured by Fultz that he was healthy. Consider on Nov. 6 when Fultz told media he was healthy to play—Brown could rely on such a statement to stress that the player assured him he was healthy. Fultz also played significant minutes for the 76ers this season, averaging 22.5 minutes per game. If Fultz was very injured, he presumably would not have been able to play nearly half the minutes of the games in which he did.

There is also a mystery about the origin of Fultz’s injury and it could have legal significance. An unsubstantiated rumor suggests that in 2017, Fultz suffered an injury in a motorcycle accident. If this rumor is true, and if the injury was to his thoracic outlet and if the injury occurred after Fultz signed with the 76ers (a lot of “ifs”), the 76ers would potentially gain the legal right to void his contract. Paragraph 12 of the NBA’s uniform player contract bars players from “driving or riding on a motorcycle or moped or four-wheeling/off-roading of any kind” without the written consent of the team.

It’s worth noting that Fultz is owed considerable salaries going forward: $8.3 million in ’18-19 and $9.8 million in ’19-’20 (in addition, the 76ers could extend Fultz’s contract in ’20-’21 for a salary of $12.3 million). The 76ers also have a deep roster that could become difficult to preserve with the NBA’s salary cap. 76ers officials obviously want to maintain the team’s position in the Eastern Conference. Eliminating Fultz’s contract, and freeing-up salary cap space, could potentially help that goal.

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Still, it seems unlikely that the 76ers would attempt to void Fultz’s contract. First, he’ll maintain some level of trade value given the legacy status bestowed on No. 1 overall picks. The vast majority of No. 1 overall picks go on to have successful NBA careers and many become stars. Anthony Bennett is an exception, as is an injured Greg Oden. But the list of number overall picks is pretty impressive. And even some of those perceived as “busts”, such as Pervis Ellison or Kwame Brown, might play for a long time in the NBA—Brown, for example, played 12 seasons during which he earned $64 million in NBA salaries.

Second, the National Basketball Players’ Association would aggressively attempt to stop the 76ers from voiding Fultz’s contract and file a grievance. The NBPA would highlight that voiding a contract for an injury is an excessive punishment. Back in 2008, the Golden State Warriors suspended Monta Ellis for 30 games. The suspension served as a sanction for Ellis seriously injuring his ankle in a moped accident (under Paragraph 12, Ellis was contractually prohibited from using a moped). The Warriors made no attempt to void Ellis’s $66 million contract.

Third, it’s not clear if the 76ers previously learned of the origin of Fultz’s injury and declined to impose a punishment. If that proves true, the team arguably waived their chance to impose a punishment.

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.