In early March, the NCAA cancelled the remainder of all winter sports as well as all upcoming spring sports. Despite uncertainties as to whether fall sports would follow suit, the NCAA announced in June that the plan is to proceed with fall sports under the same formats and timelines.
Although the intention is to advance with the plan established before the COVID-19 pandemic, the NCAA stated that it will, “remain nimble to react to a fluid and unpredictable environment in ways that protect the health, safety and well-being of students, coaches, administrators and spectators.”
As COVID-19 cases have begun to resurge across the country, the NCAA recognized the increased risk of proceeding with the season, specifically for sports that involve constant physical contact. Accordingly, the NCAA has released a new set of guidelines to protect the health and safety for student-athletes and staff members. These guidelines include daily self-health checks, use of facial coverings and social distancing practices, abiding to the public health standards set by each school’s local community, and consistent testing that is to be conducted prior to each competition.
In addition to providing these guidelines, the NCAA has also released what they believe will have them reconsider proceeding with the fall season. They are as follows:
•A lack of ability to isolate new positive cases or quarantine high contact risk cases on campus.
•Unavailability or inability to perform symptomatic, surveillance, and pre-competition testing.
•Campus-wide or local community test rates that are considered unsafe by local public health officials.
•An inability to perform adequate contact tracing.
•Local hospital infrastructures that cannot accommodate a surge in COVID-19 cases.
Although these guidelines and consideration can assist in identifying and mitigating student-athletes’ health risks, schools and conferences have decided to take further precautions. Several schools and conferences, including the Ivy League, recently announced that all fall sports are suspended. Nonetheless, many other conferences have taken a less severe, but conservative, approach by establishing a conference-only model.
With the fall season right around the corner, student-athletes for schools that still intend to proceed with the season are beginning to report to their campuses. Unsurprisingly, a significant amount of positive COVID-19 cases has been reported for student-athletes on campus. For example, more than 30 Louisiana State University football players were placed in isolation after either testing positive for COVID-19 or for coming in contact with a player who tested positive. While this has caused several teams to temporarily suspend team activities and reevaluate moving forward with the season, as of now, there will still be fall sports for many of these colleges.
Schools throughout the country have been placed in a difficult position. Colleges, like the NCAA, want to give student-athletes the opportunity to compete. However, preseason activities have already demonstrated that doing so will consequently put student-athletes’ health at risk.
In addition to this risk, NCAA schools have begun to realize that they are exposing themselves to significant liability by allowing their student-athletes to compete this fall. If a student-athlete contracts COVID-19 while abiding by his or her school’s comprehensive health and safety policies, the student-athlete could very well have a valid legal claim against his or her school.
Accordingly, several schools have taken a preemptive approach to potential litigation by requiring student-athletes to sign a waiver before arriving on campus and participating in team activities. Simply put, if a student-athlete wants to participate in the upcoming season, he or she (or a parent if under the age of 18) is required to waive the right to sue the school for anything related to COVID-19.
Though these schools require a signature to compete this fall, student-athletes have the right to refuse signing the waiver. However, these waivers thus far have made it clear that student-athletes who choose not to sign the waiver will not lose their athletic scholarships or eligibility. Thus, it appears that student-athletes who choose not to compete this fall will not face repercussions.
Nevertheless, the nature of college sports says otherwise. College athletics gives student-athletes the opportunity to compete at a high level, and in some cases, create professional opportunities. Therefore, student-athletes likely will feel compelled to accept the risks involved with COVID-19 to make a good first impression with the coach, move up on the depth-chart and lead their team to a championship. For many student athletes, the aforementioned reasons overshadow the fact that they are releasing their schools from COVID-19 related liability.
Although schools may find comfort in their student-athletes signing their respective waivers, the enforceability of these waivers may prove difficult. First and foremost, enforceability of waivers is wholly dependent on state law. Each state has developed its own statutory and common law, and therefore, no two states are exactly alike.
For example, in Illinois, a party can use a waiver to be released from liability resulting from negligence so long as (1) there is an absence of fraud; (2) the negligence was not willful and wanton; (3) there is not substantial disparity in bargaining power between the two parties; (4) the waiver does not violate public policy; and (5) there is no social relationship between the parties that would militate against upholding the waiver. Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 584 (1st Dist. 1990). Moreover, the waiver must contain clear, explicit and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which one party agrees to relieve the other from liability.
Although Illinois is a part of the majority, there are states that almost exclusively prohibit exculpatory clauses via waivers. For example, Montana law states that, “all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” MCA Sec. 28-2-702. There is only one exception to this prohibition, and that is if the waiver releases a party from ordinary negligence liability from an inherent risk of a sport or recreational opportunity. MCA Sec. 28-1-753. In fact, most states find a way to allow for waivers in recreational activities.
Regarding states like Montana, COVID-19 is likely not an inherent risk of college sports. Generally speaking, inherent risks in sports include a running back sustaining a broken bone after being tackled or a pitcher being hit with a line drive. Unlike these risks that can only be assumed when engaging in sports, contracting COVID-19 from proximate contact can occur in anyone’s daily life today. It certainly can be argued that sports like football now come with the inherent risk of contracting COVID-19 due to constant physical contact. However, courts would likely be reluctant to make such a momentous decision given that this would greatly expand an exception that was intended by its drafters to be applied conservatively.
As for states like Illinois, the enforceability of these COVID-19 waivers will likely depend upon on whether there is a substantial disparity in bargaining power and whether the waiver violates public policy. Regarding the former, schools likely have greater bargaining power than student-athletes. However, student-athletes are not in a position where they need to concede their position. If student-athletes do not wish to sign the waiver, their eligibility and athletic scholarships will not be affected. Therefore, unless a waiver does not provide that eligibility and scholarships will be maintained, courts likely would fail to find that there was a substantial disparity in bargaining power that resulted in student-athletes feeling they absolutely needed to sign the waiver and participate this season.
However, public policy concerns may cause issues for schools attempting to enforce these COVID-19 waivers. With health and safety being the No. 1 concern for student-athletes and the staff, courts may be reluctant to allow schools to let young adults engage in high-risk activities knowing their schools are immune from liability. Furthermore, mitigating the spread of COVID-19 is one of the top current priorities in the United States. Therefore, courts may take the position that if colleges and the NCAA believe that proceeding with fall sports is more important than significantly decreasing the spread of COVID-19 by suspending play, these institutions should bear the risk of litigation.
In fact, this consideration has already been discussed on Capitol Hill. Two U.S. senators have identified public policy concerns with these waivers, and have since stated that they intend to propose legislation prohibiting these COVID-19 waivers in their entirety.
With an increasing amount of schools and conferences deciding to suspend fall sports, there is a real chance that intercollegiate sports will ultimately be suspended nationwide. However, larger conferences and schools have indicated that they intend to exhaust all other options before following this growing trend. For schools that have already or will choose to require student-athletes to sign a waiver releasing their respective school from liability related to COVID-19 claims, it can be expected that student-athletes will challenge the enforceability of these waivers if they contract COVID-19. Whether or not these schools are protected will come down to their states’ laws and whether courts find that proceeding with intercollegiate competition benefits the public more than the health and safety of student-athletes.