Abstract
The pandemic will likely trigger a wave of claims and litigation. Lawsuits are already being filed in response to institutional and conference decisions not to play sports in the fall and the cancellations of sponsorship arrangements. Disputes over transmission of COVID‐19 during practice and competition are likely right around the corner. Unlike a workers’ compensation system established as the exclusive remedy to compensate employees for work‐related illnesses and injuries, college athletics doesn't offer a compensation system for student‐athletes who contract the virus.
Instead, civil lawsuits remain the primary way for student‐athletes to seek redress for an injury or illness. The NCAA's decision to prohibit the use of liability waivers signed by student‐athletes left the door open for student‐athletes to file negligence and medical malpractice lawsuits against schools, senior management, athletics directors, coaches, trainers, medical staff, and even other student‐athletes.
Understandably, schools have significant concerns about the potential ramifications of such lawsuits. Indeed, many institutions’ and conferences’ risk management assessments concluded that protocols were insufficient for ensuring a safe return to play in the fall without a significant risk of transmission.
It's against that backdrop that a small number of states enacted laws that should effectively limit or prevent liability as a result of COVID‐19 transmission among student‐athletes. However, until all states do so in a consistent manner or Congress passes comprehensive national legislation on the subject, the potential for COVID‐19‐related liability remains a significant risk for many schools throughout the country.
In the absence of a legislative shield against liability, as schools are still preparing for or have returned to practice and competition, they must closely monitor the evolving best practices and corresponding standard of care for COVID‐19 prevention, containment, treatment, remediation, and rehabilitation efforts. Many available resources can provide important guidance to schools while helping them establish the expected level of care, including the following:
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NCAA: As of this writing, the NCAA has three guidance documents, which are the most comprehensive for returning student‐athletes to practice and competition: “Core Principles of Resocialization of Collegiate Sport,” “Resocialization of Collegiate Sport: Action Plan Considerations,” and “Resocialization of Collegiate Sport: Developing Standards for Practice and Competition.” These documents, along with frequently asked questions and a checklist, among other resources, can be found at www.ncaa.org/sport‐science‐institute/covid‐19‐coronavirus. Although the NCAA emphasizes the documents were designed as guidance and not intended to establish any requirements, they're critically important resources that schools should thoughtfully review and consider. (The NCAA recently expanded its medical advisory panel, and so additional guidance may soon be forthcoming.)
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Centers for Disease Control and Prevention: Although the CDC hasn't yet issued specific guidance for intercollegiate sports competitions, the CDC has generally applicable guidance for the public at large, schools, businesses, and youth sports. Because the CDC is generally considered the most authoritative agency in the area of communicable diseases, schools should also review these documents (available on the CDC website) and incorporate them into institutional protocols.
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State agencies: Each state usually has its own CDC, board of higher education, department of health and human services, and licensing boards, which may have generated their own requirements and guidance regarding COVID‐19, group activities, sports, residential environments, and educational activities. In addition, regional health authorities oversee and coordinate major health issues. Schools should consult these entities for relevant input or expectations on protocols, practices, and resumption of competition.
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Conferences: Schools should review and incorporate conference‐level guidance and protocols.
Individually and collectively, these resources establish a new baseline of expected actions in all facets of intercollegiate athletics activities. In other words, they're standards by which the actions of athletics administrators will be judged in light of COVID‐19. There's nothing worse for athletics administrators to hear than “Why didn't you follow this procedure? After all, it's written down here in clear and unmistakable language.” To avoid having to face that unfortunate predicament, each athletics administrator should read and understand all available, relevant guidance. Despite the expensive, time‐consuming, and resource‐intensive nature of compliance in this area, it's likely the most prudent way for athletics departments to move forward.
About the author.
Timothy O'Brien, Esq., is a Partner with Libby, O'Brien, Kingsley & Champion, and the O'Brien Sports Group. Email tobrien@lokllc.com.