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Key is swinging/moving
While much of the emphasis has been placed on the above/below the shoulders language I believe the real key is the swinging/moving elbow language as if the elbow is stationary and contact is made to an opponent above the shoulders, a common foul can be called (an intentional may still be called but a common fould can still be called by rule). IF the elbow is swinging/moving AND contact is made above the shoulders then a common foul is no longer an option and the foul called must either be an intentational foul or a flagrant foul (personal of technical depending of the status of the ball).
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