By Josh Villarreal, J.D. Candidate – Class of 2021, Baylor Law School and Rick Meadow, National Mass Tort Leader and Director of Business Development for The Lanier Law Firm
Covid-19 has upended almost every aspect of life in America, college athletics being no exception. In America, college athletics are big business. The National Collegiate Athletic Association (“NCAA”) takes in about $8 billion a year. As a result of the cancellation of the March Madness tournament in 2020 alone, the NCAA lost out on roughly $930 million in revenue. The potential losses from a cancellation of the college football season would be staggering. While the NCAA’s incentive to play sports is clear, what say do college athletes have in these unprecedented times? Do they have options regarding whether to report to practice? Should they sign liability waivers? If an athlete gets COVID-19, do they have any options? These are all genuine considerations for college athletes.
With the fall semester rapidly approaching and the COVID-19 pandemic showing no signs of slowing down, colleges and their student-athletes are faced with making unprecedented decisions. First, it is important to remember than unlike professional athletes, student-athletes are not part of a collective bargaining agreement. Therefore, decision making regarding whether or not to play does not include the players. That decision rests with individual conferences and universities. While some conferences and universities are attempting to establish uniform COVID-19 regulations, this task will prove extremely difficult.
Because each conference governs itself independently of the others, it is difficult to establish a set of uniform regulations that would be enforceable throughout the country. A conference or university only has the means of imposing its rules on that conference or university. Additionally, due to the financial difficulties associated with testing and other regulations, it would be challenging to establish regulations that all schools could fiscally comply with.
Starting in June, the NCAA allowed college football teams to begin “voluntary practices.” Since returning for workouts, COVID-19 has struck major programs throughout the country. Players at LSU, Clemson, Kansas State, Michigan State, Florida, Texas, and others have tested positive for the virus since returning to their campuses. These results beg the question of whether student-athletes can elect not to participate in athletics out of health concerns not only for themselves, but also for their families. As evidenced by the programs that have already been struck by the virus, it seems a matter of when, not if, student-athletes will become infected.
Southeastern Conference Takes Unique Approach
Universities are bound to take different approaches to these complex issues. The Southeastern Conference (“SEC”) has decided to allow its student-athletes who elect not to participate in fall 2020 athletics out of health concerns to have their scholarships honored and remain in good standing with their team and university. While this seems like the obvious and ethical option for all colleges moving forward, the SEC is the only conference to make that decision thus far.
In an attempt to combat the legal risks associated with COVID-19, universities and even high schools have requested that their athletes sign COVID-19 waivers, absolving them of potential liability if a student-athlete were to contract the virus. However, the enforceability of such waivers is doubtful. Laws regarding waivers vary throughout the country, with a handful of states not permitting them all together. Among the states that do permit waivers, some will not allow a parent/guardian to sign on behalf of a minor child. In these early stages, it is difficult to forecast the effectiveness of these waivers. However, they will almost certainly be subject to challenges in court.
The Problem with Waivers
When examining these waivers, there are many areas of concern. First, most of the student-athletes asked to sign COVID-19 waivers are likely not represented by legal counsel. Thus, it is reasonable to doubt that they truly understand the potential ramifications of signing these legal documents. Generally speaking, signing a waiver must be voluntary, and its terms should be apparent to those signing. This alone presents problems considering the uncertainty surrounding COVID-19. The potential effectiveness of these waivers will be dependent upon their wording. However, it is problematic that COVID-waivers require a student-athlete to adhere to social distancing and other CDC guidelines despite putting them through practices and games where such instructions are impossible to follow.
Thus far, universities have taken different approaches when presenting their student-athletes with waivers. Initially, many universities have characterized these waivers as educational pledges as opposed to legal releases. However, despite the label, student-athletes are being asked to give up legal rights in exchange to play sports and earn money for their respective universities.
For example, Ohio State University (“OSU”) insists that its student-athletes sign a “Buckeye Pledge.” The pledge requires student-athletes to subject themselves to regular testing and take necessary precautions such as social distancing and wearing a mask. Additionally, the pledge acknowledges that student-athletes may still contract the virus even if they and the university take all necessary precautions. An OSU spokeswoman stated that the university does not look at the pledge as a legal waiver, but merely as a tool to educate student-athletes and their families about proper safety precautions.
On the other hand, Southern Methodist University (“SMU”) has asked its student-athletes to sign a waiver that looks akin to a standard liability waiver alleviating the university of liability. The SMU waiver was entitled “Acknowledgement of Risk for COVID 19 Summer 2020.” However, the waiver did give student-athletes the option of declining to participate in athletics without affecting their scholarships.
With the fall semester only weeks away, there remain many unknowns with the feasibility of starting, let alone completing a season. Additionally, outside of the SEC, it remains to be seen what rights student-athletes will have if they elect to sit out due to COVID-19 concerns.
