My position on this scenario is that if the defender does maintain verticality then he can't be guilty of a foul no matter what happens on the part of the offense. The problem is that alot of times when players actually do go straight up, they realize they've been head faked, then start reaching with their hands to try to cover being caught up in the air. Once this happens the foul is pretty evident once contact happens. Also alot of defenders don't jump straight up when defending the 3 point line, but that's just a personal observation.
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