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Wednesday, September 28, 2005
A DNA Contractual Showdown Looming? Eddy Curry's Cardiologists Say DNA Test Unwarranted and Unnecessary

Bolstering the argument of Chicago Bulls center Eddy Curry and his attorney, Alan Milstein, that Curry not submit to the Bulls demand that Curry take a DNA test, Los Angeles cardiologist Dr. David Cannom--who examined Curry in June--says Curry's heart is structurally sound, and a DNA test for the heart affliction hypertrophic cardiomyopathy ("HCM") is unnecessary. As we discussed on Monday, the Bulls believe that Curry may have, or have a propensity for developing HCM, and should he re-sign with the Bulls to a one-year, $5.14 million contract, the team would require that he take the DNA exam as part of his physical. If the Bulls were to discover that Curry had HCM, they might then seek to immediately void the contract.

Perhaps most significantly, Dr. Cannom contends that the Bulls are treating Curry unreasonably and, by implication, unethically:
"There's a standard being applied that wouldn't be applied if he weren't a $60 million athlete. This is beyond clinical routine care." Dr. Cannom's opinion is corroborated by another of Curry's former cardiologists, Dr. Mark Estes, III, a professor at Tufts University School of Medicine and Director of New England Medical Center's Arrhythmia Center. Estes examined Curry back in May.

The National Basketball Players' Association ("NBPA") has also addressed the Bulls-Curry DNA test dispute. Spokesman Dan Wasserman contends that Curry would have to voluntarily agree to the testing, as "there is nothing in the collective bargaining agreement that allows a team to compel a player to undergo DNA testing." The NBPA's position is predictable: it doesn't want a "right" (in this case, the right of a team to force a DNA test of a player) to be allocated to the owners without a corresponding trade-off in collective bargaining.

Despite the support of several prominent cardiologists and the NBPA, Curry is still faced with a practical dilemma: the Bulls are offering him much more than any other team, and have indicated that they would match any reasonable contract that Curry were to sign with another team as a restricted free agent. That is, if Curry were to sign with another team, the Bulls could match the contract, and he would then find himself in the same situation that he now finds himself in. The Bulls and Curry are thus likely going to have to come to some form of an agreement, although it might ultimately involve an arbitrator.

Along those lines, one strong possibility is that Curry signs the one-year, $5.14 million qualified offer from the Bulls, and then refuses to take the DNA test--thus triggering a contractual showdown on DNA testing. The Bulls can obviously not "force" Curry to take a medical exam, but they can then seek to void the contract. Article II, Section 13 of the NBA-NBPA collective bargaining agreement specifies that a team may void a players' contract if the player "does not pass a physical examination pursuant to Exhibit 6 on Physical Exams." Turning then to Exhibit 6, it notes:
The Player and the Team agree that this Contract will be invalid and of no force and effect unless the Player passes, in the sole discretion of a physician designated by the Team, a physical examination in accordance with Article II, Section 12(h) of the CBA.
Exhibit 6 thus confirms that a Bulls-designated physician (rather than an independent one) would have to approve Curry's physical, which the Bulls consider inclusive of a DNA test. Exhibit 6 also invites us to turn to Article II, Section 12(h) for further clarification (only relevant portions included):
(i) The player must report for such physical examination at the time designated by the Team and must, upon reporting, supply all information reasonably requested of him, provide complete and truthful answers to all questions posed to him, and submit to all examinations and tests requested of him. The determination of whether the player has passed the physical examination shall be made by the Team in its sole discretion.

(iv) A player who knows he has an injury, illness, or condition that renders, or he knows will likely render, him physically unable to perform the playing services required under a Player Contract may not validly enter into such Contract without prior written disclosure of such injury, illness, or condition to the Team.
What does this language tell us about a hypothetical event in which Curry signs with the Bulls and then refuses to take a DNA test? Could the Bulls really void the contract? Could Curry then sue the Bulls?

On one hand, the Bulls would argue that Curry must, pursuant to Section 12(h)(i) of the CBA, "submit to all examinations and tests required of him," and must pass them to the satisfaction of the Bulls. On the surface, this language appears to provide the Bulls with significant latitude in what they can request from Curry: the team requires a particular physical, and it must be passed to the satisfaction of the team, and by refusing to take the DNA test, Curry fails the physical. Contract voided. Case closed.

But not so fast. The CBA is strikingly imprecise as to the parameters of medical information required of players. For that reason, a "reasonable" standard would likely be applied, which would consider the circumstances in which the Bulls and Curry found themselves. For Curry, the fact that a DNA test would be unprecedented would likely prove most valuable: if a DNA test is such a reasonable demand from the Bulls, then how come no team, in any sport, has ever made such a request before? The Bulls might argue that Curry's circumstances are unusual, but in response, Curry might question how
Monty Williams could play for 5 NBA teams in 9 seasons, while having the disease that Curry might have, and yet not be required to take a DNA exam? But the Bulls would then assert that Williams' illness was diagnosed after his freshman year at Notre Dame, thus rendering a DNA exam unnecessary. In response, Curry might wonder how Williams could play for 5 teams and not be any kind of apparent liability to his employers, and yet the Bulls evidently believe that Curry would be a liability if he has HCM--why, Curry might ask, are the Bulls so different in their medical practices than were the 5 teams that Williams played for (Knicks, Spurs, Nuggets, Magic, and the 76ers)? But then the Bulls could reply that those 5 teams may have taken additional safety precautions to employ Williams--to which Curry could retort that prominent cardiologists have already determined that he doesn't need such precautions.

Taken together, should an arbitrator (or a court, if one party were to appeal the decision of an arbitrator) ultimately hears a dispute between Curry and the Bulls over a refusal to take a DNA test, I suspect Curry would likely have the upper-hand.

**UPDATE January 2006**: I have a forthcoming law review article on this topic: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor and Employment Law __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network ("SSRN") -- the download is free, and all it requires is an SSRN account, which is itself free and which provides you with access to thousands of interesting articles, papers, and drafts.

Past Coverage: Brave New World? Eddy Curry and Chicago Bulls in Dispute over DNA Test, 9/26/2005.

Disclaimer of Interest
: I was a member of Maurice Clarett's legal team, of which Alan Milstein--Curry's attorney--was lead counsel.


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