Ashley J. Beth
Loyola University Chicago School of Law, JD 2022
As Covid-19 restrictions begin to ease, sports leagues are tasked with implementing safety measures in an urgent and effective manner. Despite the rush for normalcy amid trying times, mitigating further spread and risks associated with the ongoing pandemic are at the forefront of these efforts. The National Collegiate Athletic Association (NCAA) is among the first organizations attempting to resume operations while facing significant health and safety considerations.
What is the NCAA?
The NCAA is a member-led organization that proposes, adopts, and implements college sports policy for 1,098 college and universities. The organization is further divided into three divisions, each with their own legislation developed by member committees. The NCAA passes health and safety regulations that are modified and passed separately be each division. In 2013, the NCAA created the Sport Science Institute (SSI) to address pressing health and safety concerns. The Institute provides resources developed by a group of medical experts and data driven analytics on the most prevalent medical issues college athletes face.
NCAA response to Covid-19
In response to Covid-19, the SSI published guidelines developed by the Covid-19 advisory board called the “Resocialization of Collegiate Sport”. The purpose of the guidelines is to continuously provide institutions with information on the best strategies to mitigate the spread of Covid-19. The publication includes general information from the CDC, strategies for testing, and suggestions for limiting personal contact. The NCAA Board of Directors has directed each division to adhere to and employ the protocols set forth in the guidelines as well as additional specific requirements. The requirements include but are not limited to: 1) allowing all student athletes the opportunity to opt-out of the season, 2) covering COVID-19 related medical expenses if the infection can be traced back to NCAA activity, and 3) prohibiting schools from requiring student athletes to sign COVID-19 waivers releasing their legal rights as a condition of participation.
These guidelines are interassociation recommendations, meaning they are not legislation. This difference is significant. A school that is found to be in violation of legislation could be subject to penalties that impact the institution and the eligibility of student athletes. Whereas, a school that does not implement interassociation recommendations cannot be subject to penalties within the NCAA. The NCAA may also be hesitant to adopt formal health and safety requirements, as deviation from such requirements could be used to prove negligence. It is the responsibility of individual divisions to implement the guidelines in coordination with applicable government law and institutional policy. Member schools and individual conferences have taken different approaches to return to play based upon their unique needs and resources available.
Liability for Covid-19 related illness or death
Although young healthy people are more likely to experience mild symptoms and recover quickly from COVID-19, medical experts are warning of a serious long-term risk that can affect even healthy individuals. A heart condition, Myocarditos, has been found to be prevalent in this group. In fact, a study conducted on Big 10 student athletes who have tested positive for Covid-19, showed that 30-35% of the student athletes presented the condition. Myocarditis is the inflammation of the heart muscle that can lead to strokes or heart attack. Dr. Jonathan Kim, a sports cardiologist at Emory University, generally recommends a minimum of three months of no high intensity physical training. The protocols proposed fall significantly short of that time frame and do not require evaluation for the condition. With many questions remaining as to the impact the virus may have, NCAA institutions are considering how to protect themselves legally.
As previously mentioned, if implemented by divisions per NCAA Board guidelines, the institutions are prohibited from requiring liability waivers as a condition to play. The President of the NCAA responded to questions regarding the waivers, stating “I am categorically opposed to it. It is an inappropriate thing for schools to be doing.” However, several institutions, including Ohio State, have already required students to sign documents that appear to be liability waivers. In response to criticism for the “Buckeye Pledge” the Athletic Director of Ohio State clarified that the waiver was not a legal document, but rather a pledge to encourage responsibility for proper health and safety protocols. Even if this “Pledge” and similar documents are signed, they are merely “assumption of risk” documents that only cover ordinary negligence. It is highly unlikely that any institution will be grossly negligent while facing intense scrutiny during the pandemic. Thus, these waivers do little, but confuse student athletes and scare them and their families.
Moreover, the difficulty of tracing the source of the spread makes the issue of causation in any type of negligence lawsuit nearly impossible. Asymptomatic spread had been prevalent on college and university campuses. Further, the NCAA and its intuitions do not have complete control over where a student athlete goes. A student will not be able to prove that the virus was spread through their participation in the sport and not during their trip to the grocery store. Therefore, as long as appropriate protocols are followed to ensure the health and safety of student athletes, it is unlikely that a student or family can prevail in a lawsuit.
As college and universities resume play, the NCAA and individual institutions will continue to face challenges in addressing the ongoing health and safety concerns of student athletes. As it stands now, divisions have been delegated the power to enforce protocols for their institutions. Decisions are and will continue to be based on the ability of institutions to provide necessary resources as guidelines change in response to the conditions. Legal actions related to Covid-19 illness or death of a student athlete are likely to be unsuccessful. Overall, it is in the best interest of all actors to do their part in the mitigation of the Covid-19 spread to advance the return to normalcy.