In this episode, hosts Brad and Michael, along with series regular Jay Reyero, share the story of an orthopedic surgeon and the unintended consequence of landing his dream job as team physician for a top college football program. As new NIL (Name, Image, Likeness) rules reshaped college sports, student athletes can seek compensation beyond traditional medical expenses, increasing a surgeon’s malpractice exposure. Tune in to learn how legal and regulatory shifts in health care, especially those outside your control, can quietly impact your practice, and steps you can take to protect yourself from unexpected risks.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Transcript
*The below transcript has been edited for readability.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. This season’s theme is Unintended Consequences. We sometimes find ourselves in a situation that can be traced back to a seemingly inconsequential or unrelated decision.
Brad: All right, Michael, before we get started, obviously for those in TV land have already seen that welcoming back for the first time this season, for Season 20 is our series, regular and partner Jay Reyero.
Jay: All right, thanks guys. Excited to be back this season. And Michael, I have to start off – a few weeks ago you told the story about Jalen Rose, and how you heard that he was the first Jalen in recorded history. [00:01:00] I was actually listening to the radio station that day, heard the same thing. Couldn’t believe my ears, so I just wanted to say I really appreciate all the research that you did to kind of keep me informed about the truth.
Michael: Well, you’re welcome. And I actually learned something new and disturbing as it relates to my podcast research. I got to hear Condoleezza Rice speak at SMU, and she gave us the same warning she gives her students at Stanford and said that, by the way, young people Google is not research. I’m like, how with all this podcast stuff that we do.
Brad: I mean…that’s not research. Well, hopefully for the benefit, for your benefit, at least she said that but Siri is a great research assistant.
Michael: I inferred that, yeah.
Brad: Obviously not Google. Everybody knows that.
Michael: Chat GPT.
Jay: Regardless of your resources or whether they’re questionable or not, what it took me back to was I remember the Fab Five back in ‘91, that was one of my favorite teams, [00:02:00] inspired my wardrobe, if you remember the basketball shorts that would go down to your shins. But it also brought back really painful memories about the devastation that I remember two years later in the “timeout” game.
Michael: Oh, yeah. Chris Webber sealed the game for North Carolina. A lot of people don’t remember that he got away with traveling just like five seconds before that. It was like a fanatic rebound. And he took a couple of steps as he was racing down the court, and then called Time Out.
Jay: Well, Michael, they don’t call it traveling anymore in the NBA or college, so I don’t think we have to worry about that little detail. But speaking of the NCAA Men’s Tournament, I was curious to find out from each of you what is each of your favorite or most memorable moments from the tournament?
Brad: I’ve got a lot of them, but I’m a little older school guy here, and I’m going to go to the eighties, like my movie references. But 1982, the NCAA Championship was played in the Superdome, which is crazy. And in the championship game, [00:03:00] my dad got tickets, so I sat in actually pretty good seats and watched some freshman named Michael Jordan playing for UNC, hit the game winning shot over Georgetown, and Patrick Ewing was a freshman on that other team, and they were favorite in that game, so it was a pretty cool game to be at. Yeah.
Michael: Yeah, that’s very iconic. Well, I have to say my favorite, if I had to pick a favorite, is when UT made the Final Four many, many years ago. I was in shock, because that’s UT, but that was a very big surprise. But the thing I remember the most, kind of going back to Brad with the iconic moments, is the buzzer beater when Christian Laettner for Duke caught the full pass, turned around and drained it.
Jay: Yeah, those were both great. Totally remember those. For me, it’s difficult. There’s so many great memories of the different types of shots, and you see them on replay nowadays. But with today’s story, the one that really came to mind and stands out to me [00:04:00] – do either of you remember what happened on March 19th, 1995?
Brad: No, I don’t. I’m sure I should, I guess.
Michael: I was on cruise control my last few months of law school, so I probably don’t remember much of anything.
Jay: All right. So I’ll set the stage. It was the second round of the NCAA tournament that year. It was a game between the Missouri Tigers who were ranked number eight, and the UCLA Bruins who were ranked number one. Missouri had hit a layup right at 4.8 seconds. Took the lead 74/73, UCLA called a timeout on the inbound. The inbound went to the famous Tyus Edney, who caught the ball, drove down the left side of the court, dribbled behind his back towards the right side, then jumped, hit a layup, buzzer beater, game winner. I don’t remember how many times I recreated that play in my backyard and on the court, but it was one of the things that burned in my memory at the time.
Brad: Oh, that does sound very impressive. I couldn’t even imagine doing any of that, actually.
Jay: Yeah. And after that shot, [00:05:00] UCLA actually ended up going on and going all the way and winning the national championship.
Michael: I remember this all very well. Jay, you said that Tyus Edney’s shot was spurred by today’s story. I don’t think any members of that UCLA team or physicians or clients, so what’s the connection?
Jay: Well, it was actually the action of one of the members of that UCLA team that created this connection. We probably, for you, Michael, should start the story with a little bit of context first.
Michael: I love it! So let’s jump in today’s story.
Jay: Awesome. All right. So this story is beginning several years back some would say, B.C.
Michael: B.C.?
Brad: I know that Michael is old, but today’s B.C. you mean “Before COVID”, right?
Jay: Yeah, exactly. We’re going to go a little bit further back than we normally do, just not to when the dinosaurs roam the earth.
Brad: And when Michael was the best caveman lawyer on the planet at the time.
Jay: Exactly. So we’re going to start with our character in the story. We’ll call him Dr. Edney, and Dr. Edney [00:06:00] was a board certified orthopedic surgeon, licensed in California. And at the time, he was employed by a practice, let’s call it Sunset Orthopedics.
Michael: Okay. So far there’s no movie talk between the two of you, so I’m good.
Jay: Yes, yes. Sports can take over. So, Dr. Edney played football in college and suffered injuries all throughout his career, and this ended up shaping his passion for a focus on sports medicine. And so after med school and residency, he was accepted into a very prestigious fellowship program. It was during this program that he had the opportunity to be involved with a variety of professional, collegiate and high school athletic teams.
Brad: Yeah. And it’s fairly common for orthopedics to be part of some type of team coverage for a sport. I mean, generally, orthopedic surgeons really want to specialize in sports medicine, which really drives their desire to be on site for medical coverage during a practice, or even sometimes obviously at actually the sporting event itself.
Michael: And yeah, we’ve had friends [00:07:00] over the years that have gotten to be part of the ortho coverage for a team, and it’s always exciting.
Jay: And so after the fellowship, Dr. Edney took the opportunity to join Sunset Orthopedics, where he began building his practice and specializing, as you can imagine, shoulders, knees, and elbows.
Brad: Now, Jay, did Dr. Edney have any outside activities besides what… you already gave an example of obviously sports medicine, but a lot of times they can get involved with the community health fairs or teaching and educational centers, or clinical research, or even just volunteer work in general.
Jay: Yeah. So not right away. He was primarily focused on building his practice. He wanted to build his practice, establish his reputation in the community. he knew that this was going to be the best way to find the opportunities that he ultimately wanted most.
Michael: Which was what?
Jay: And of course, that’s athletic team coverage, being interested in sports medicine, having the experience in the fellowship, so that was his ultimate goal and ultimate dream.
Brad: [00:08:00] That actually kind of reminds me a lot of my dad because my dad was the team doctor for my high school for I think, 16 or 17 years, from the year I was in kindergarten to when my little sister graduated, which then eventually got him introduced to being a second opinion for the NFL, which I think he loved that more than anything else. But yeah, it’s very common for them to get involved with sports early on.
Michael: Okay. So was he able to find something?
Jay: Yeah. So eventually, after about a year, he landed the opportunity for a small local high school to be the head physician – some similar story there. And it was a good start, but it was about six months after that where you could say his dream came true because he was presented the opportunity to become the team physician for a prominent division one college football program, and let’s call them the Bruins FC.
Brad: Interesting. I wonder if the Bruins FC was located in California, Jay.
Jay: Impossible to know, Brad. Impossible to know. But Brad, what I remember most at that time was that Dr. Edney was [00:09:00] extremely excited about this opportunity, and he reached out to us and he wanted us to review this contract form that was being prepared by the Bruins FC. And when we got it, I remember I looked at it and the very first thing I thought was, this is it? Like, it was such a straightforward, common contract we’ve seen just in general from other situations. Have never seen an agreement from this type of context. I expected it to be 15, 20 pages of super in depth legalese and all these defined terms. And it really wasn’t, it was much more straightforward.
Brad: There seems to be a common misconception that because someone is part of a larger organization or a big college program or something like that, that the person drafting the documents would be more sophisticated because of the size and scope of the business. And as you and I have both seen, or all of us have seen over the years that just because it’s coming from a big group, [00:10:00] doesn’t necessarily mean that, number one, it’s as sophisticated and number two, that they maybe have tested it as much as they should. But Michael, what’s your experience with these types of agreements?
Michael: Well, the first thing that it reminds me of is the types of contracts you see with academic appointments for doctors. They’re a different animal. You would expect them to be the same thing, just super sophisticated. They’re usually a few pages long. They’re broken up, and oftentimes they are contracts that go year to year because they’re faculty appointments. And so for all of us lawyers in contract law, usually contracts you design to automatically renew and have an evergreen clause. And with those academic contracts, that’s oftentimes you got to renegotiate each year. But the closest I’ve ever gotten to an athlete was when I represented an NFL player buying a barbershop. I don’t think this applies.
Brad: No, no. Probably a little bit different. [00:11:00]
Jay: Yeah, save those takeaways for later.
Michael: So, Jay, did you guys get the deal done for Dr. Edney?
Jay: Yeah, yeah, we did. It was a little bit of a negotiation, but at the end of the day, we secured the agreement that Dr. Edney was extremely happy with, super excited to start the opportunity and was willing to sign. So he ended up signing the contract and became the team physician for the Bruins FC.
Michael: Okay. Was this the decision that later had unintended consequences?
Jay: Yes. But this is where things get interesting and adds a little bit of a twist. So we need to, now, let’s travel back in a time a little further back.
Michael: Further than B.C.? Oh, wait, no, before covid.
Jay: Okay. So let’s bring back the action of one of our members that I mentioned earlier, the 1994 – 1995 UCLA Bruins team. Do either of you remember who was the best player on that team?
Brad: Yeah, I can’t think of that. I mean, in the ’94, ’95 for some reason, [00:12:00] I know somebody who was a quarterback there, Troy Aikman, so that’s what I’m thinking of. But I don’t know.
Michael: Brad, you’re finally becoming a secret Cowboys fan. All these number of years here has just immersed you in Cowboys misery.
Brad: Right.
Michael: But you had training with New Orleans.
Brad: Yeah, that’s true. Many, many years of training.
Michael: All right, I like it. Except the one problem is Troy had already won two Super Bowls by ’94, ’95.
Brad: Okay, well that makes sense because that was in college ’94, so maybe that’s why I’m thinking about it.
Jay: Yeah. Also, wrong sport. But anyway, no, it was Ed O’Bannon who actually had become more famous after his playing career when he sued the NCAA in 2009. So the NCAA’s amateurism bylaws had prohibited all currently enrolled student athletes from earning any kind of revenue from the use of their images and video games. And O’Bannon argued that the NCAA’s amateurism rules constituted an illegal restraint of trade under the antitrust laws.
Brad: Yeah, I remember this case well, [00:13:00] and he actually eventually did win this case in 2014, and it was actually upheld on appeal.
Michael: I’m doing math here, and trying to do the timeline. If I remember right, all that happened sometime before Dr. Edney’s story. So what am I missing?
Jay: Nothing. You’re exactly right. You see, the O’Bannon case was actually created a blueprint for a bunch of other legal claims against the NCAA under the antitrust laws. And so what followed were a slew of cases and class action lawsuits that were aimed at the NCAA and how they placed strict limitations on the financial awards that student athletes could receive. And so eventually, these all got combined into what became known as the Alston case, which was making its way through the process during the time that Dr. Edney was securing this dream job.
Brad: And I should have said this earlier, we’re kind of throwing out some vocabulary where here, but one is that we didn’t really talk about what does antitrust law [00:14:00] and what does it mean? And for those who are not familiar with, the antitrust laws are regulations designed to promote competition and prevent monopolistic practices in the marketplace. So what does that mean? The law prohibits activities like restrained trade, restraining the consumer and the benefits from fair practices, fair prices and choices. And then enforcement side, all those states have this too. Generally from the federal agency, you’re looking at the Federal Trade Commission, the FTC or the Department of Justice, the DOJ.
Michael: I’m really curious now, I mean, we’re sitting here walking down this road of Dr. Edney becoming a sports doctor for a team, and now we’re talking about all these cases and NCAA and how does that connect? And so, I can’t wait to find out. Well, I think we should go to break and come back and learn more about Dr. Edney’s story and find out what unintended consequences awaited.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd and series regular, Jay Reyero, still here with us. Now, Michael and Jay and audience members, this season our theme is Unattended Consequences.
Michael: Alright, well, I’m curious because Jay has done only something Jay could possibly do, which is take our opening conversation about the NCAA and Tyus Edney and pull those events into the actual story today. [00:16:00] I haven’t connected the dots yet.
Brad: But it felt like a really good sports podcast.
Michael: It did, yes, but we do feel like that we have our Dr. Edney and the events that Ed O’Bannon and the lawsuit and where that’s going is going to intercede. So Jay, Dr. Edney agreed to terms to land his dream job of team position for the Bruins FC. And then you took us back to the famous O’Bannon case, which kicked off the Austin case and got us into all this legal talk. Tell us more.
Jay: Yeah. So like any good movie after traveling back in time, we have to jump forward in time a little bit, and we’re going to the summer of 2021. So, Dr. Edney’s practice was thriving and he was living his dream as the physician for the Bruins FC. And in the summer of 2021, the Supreme Court affirmed the ruling against the NCAA, requiring it to [00:17:00] allow students to obtain other non-cash scholarships and internships and other support. Shortly after that, the NCAA changed the history of college athletics by allowing NCAA college athletes to have the opportunity to benefit from their name, image, and likeness. And several states quickly followed.
Brad: And for those that didn’t know the term of on the street, they call it NIL.
Michael: And things are way, way different in college sports landscape since then. And it’s kind of wild to think that you could trace this back all the way to that play of Dr. Edney, potentially, and they won the national championship. Maybe that’s what gave Ed O’Bannon the courage or desire to sue. But I’d like to remind both of you that our season theme is Unintended Consequences, and I really would love to know where that comes into play.
Jay: Well, let’s see if we can wrap it all in a bow and create the connection. [00:18:00] So, in Dr. Edney’s story, the unintended consequence of his decision to become the team physician for the Bruins FC was actually the result of outside forces. So with the creation of NIL, college athletes now have the ability to earn a significant amount from NIL earning. So I saw a table recently about Arch Manning, said he had almost a $3 million NIL valuation in 2024. And so what does this mean? From a malpractice perspective or from a malpractice standpoint, Dr. Edney’s risk significantly increased with no action on his part overnight, because of the way that NIL has now come into play with all the college athletes.
Brad: And for those who aren’t sports fans, Arch Manning is the quarterback for UT right now, so he’s still in college, is what Jay’s getting to.
Jay: He has great hair.
Brad: I don’t know about that, but I’ll take your word for it. [00:19:00] But one of the things that you – so going back to why this is an issue is, as an athlete, and especially on the professional side, but on even the college side, there’s significant risk to the athletes, particularly college athletes because they believe they might be able to make it to the next level. So potential for long-term health, can lead to substantial financial damages, especially in this recent introduction of the NIL agreements to college athletics because now college athletes can now seek compensation that includes not only traditional medical expenses, but their value of their NIL earnings reflecting the broader financial impact of these injuries occurring in college. So historically, many athletes were not compensated for their images and rights in NIL damages because they weren’t allowed to have it anyway, and now they can claim it. The shift highlights and new risk to those college, those physicians that are treating college athletes.
Jay: Yeah. And so when you think about it from a malpractice perspective, [00:20:00] most policies for an orthopedic surgeon are going to have your typical $1 million per occurrence, $3 million aggregate limits. But now if you’re dealing with a kid and they are making 3 million in NIL, or quite frankly, it’s going to be a lot more now with the ability for college to start paying all their student athletes; the potential for that malpractice judgment to exceed – the policy limits is going to become really real, real fast.
Michael: Yeah. It reminds me – I remember this happening on the NFL side as well, just the new risk for team doctor that somewhat kind of connects to this new value that college athletes have. If I remember right, an Eagles player got a $43 million malpractice judgment against the team doctor. I don’t remember all the details and who the player was, but clearly [00:21:00] NFL players have big economic value with their contracts and it just reveals this exposure to being a physician for these highly paid athletes.
Jay: And so, Dr. Edney’s stories is such a great example of how unintended consequences could be influenced by outside factors. We say all the time that health care is ever changing, that rules and regulations and their interpretations can and do change. We’re seeing that in Texas in a variety of ways over recently. And these are the more common types of outside factors that our clients face. And if they’re not careful, if they’re not paying attention, if they’re not ready or tuned in, can really lead them to get tripped up because overnight, without them having done anything different, they could have a significantly different risk profile because of something that was completely unrelated to them.
Brad: [00:22:00] Yeah. And we’ve talked about this in other shows about the idea of compliance drift, is that when you start your business, or in this case the practice, or this great opportunity to be working with your dream job of working with a college group or wherever it, is at the time in which you started it, it would’ve been fine because of what the rules were at that moment in time. But as things start to change, as new laws are put in place, new changes in liability happen, that’s when you have to start – you can’t have the head in the sand kind of moment. You have to be paying attention to these type of issues. And this is a perfect example of what probably not many people are looking at right now as the impact it’s going to have on the treating physicians for college athletes.
Michael: Yeah, and there’s a chain of things that these doctors need to be thinking about. Number one, what’s their coverage, malpractice coverage, and is that going to be adequate? And then two, [00:23:00] are there asset protection plans that they need to start implementing to protect their personal assets if they’re going to be involved in this type of kind of higher risk activity. But if you just blindly go into it and hope that it doesn’t happen to you, I mean, you could be on the other side of what clearly is a different risk profile today than it was just a few years ago. But Jay, we’re getting towards the end. Do you have any final thoughts?
Jay: Yeah, I think it’s really important for physicians with the ever changing rules and things that go on in kind of the outside, unrelated to you, just stay attuned and stay aware of the changing and what the landscape looks like, and be prepared and be willing to learn how to potentially, not always make changes or make other decisions and change course. So having some of that flexibility, but it’s all about staying aware. [00:24:00] It’s all about keeping up to date, to Brad’s point, understanding that compliance drift is real and just being prepared to potentially make decisions to alter course or to stay the course. But just understanding the risk profile has changed and be comfortable with it.
Brad: Yeah. Michael, you mentioned this a little bit a few seconds ago, seems like now, but first off, clearly physicians need to be always thinking about their malpractice insurance. That’s their first line defense. Now that in this particular case, someone who’s thinking about treating college athletes, they need to have a larger and longer conversation about this. Making sure, what are the things they need to be doing with the schools or the programs themselves to have additional insurance that they might be able to have. And then those participating in this need to make sure how often they’re keeping up with their actual education and training so that there’s never a question that not only are they the best at the program, but they’re consistent with the standard of care. They know the best practice, they know the new treatments that are out there because going back to the drift, the changes in care is always… [00:25:00] the standard of care is always changing up, which then will help reduce the likelihood of errors and hopefully these claims themselves. And finally, develop, you said this, a very robust asset protection plan if you’re going into this space, because that’s where your exposure comes as that treating physician if you get it popped with a $40 million lawsuit. Michael?
Michael: I think people can – it would be easy to get lulled into a comfort level that, oh, well this is a pretty random chain of events that dates back to the 2000s when there’s a lawsuit filed. And just think, okay, well, it sucks for that specialty, but we’re going to be okay. And really it’s just as you guys have alluded to or said, it’s really common and here are the things that are going to affect your risk that would make you have to consider all the things that you just outlined. Lawsuit results, Supreme Court rulings, [00:26:00] Appellate court rulings, that change the risk profile for medical malpractice lawsuits. And so, you can have an interpretation in a state on the types of damages that can be awarded or a change in the standard from a liability perspective that can change your risk profile. Jay, you mentioned this and I think Brad as well, changes in laws. There’s stuff happening right now in Texas, but there’s all the time that change the rules of the game. And if the rules of the game, in other words, compliance and the things you got to do to be running your business correctly change, then your risk profile changes. And so, it becomes so important to stay in front and aware of what’s happening, kind of in how the business of health care is being regulated to understand whether you need to be taking protective measures. [00:27:00]
Brad: All well said. Well, Jay, thanks again for joining us.
Jay: Absolutely.
Brad: …And next Wednesday’s show we are back and we’ll discuss the unintended consequences when working with independent contractors. Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five star rating and share with your friends.
Michael: You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com.
Outro: ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own, and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues. [00:28:00]
