Are COVID-19 waivers simply an educational tool for student-athletes, or yet another way for schools to assert power?
Donald Trump's campaign for reelection has something in common with the NCAA’s campaign for football’s return: waivers.
Both are requiring their constituents to sign liability documents to participate in their events. Those attending Trump’s rally in Oklahoma on Saturday, the first since March, must agree to a waiver that absolves the campaign of liability if supporters become ill. Meanwhile, college athletes across the nation, while returning to their campuses for workouts, are agreeing to similar disclaimers that protect universities from lawsuits if players contract the coronavirus. But there’s a fundamental difference, says Michael Leroy, a professor in the Illinois College of Law.
“A 50-year old man who says, ‘I’m going to the rally,’ that’s a different individual than the 18-year old conflicted about returning who’s afraid to speak up,” he says. “They’re not in the same category both in terms of their willingness but also their age and sophistication.”
Two weeks after the first college football programs welcomed back athletes for voluntary workouts, a couple of trends have emerged: (1) athletes are testing positive for the virus, many of them asymptomatic; and (2) athletes, without legal representation, are agreeing to waive their legal rights.
More than 30 athletes at 14 college programs, at the very least, have tested positive, including six symptomatic players at Houston that caused the suspension of UH workouts. As recently as Tuesday, more troubling news emerged. At Kansas State, a late-arriving athlete tested positive for the virus after having worked out with fellow teammates, according to a report from 247Sports, potentially spreading the disease to others. In the meantime, hundreds of athletes are signing waivers or “pledges” with their schools in order to begin workouts. At Ohio State, there’s the “Buckeye Pledge.” In Dallas at SMU, there’s a form titled “Acknowledgement of Risk for COVID-19.” Similar documents exist at places like Indiana, Iowa and Tennessee.
While the language in these documents isn’t identical, they all carry virtually the same message: here are the virus risks, here are the precautions the school is taking, here are what precautions you should take and here’s why you can’t sue us. Though the documents specifically note that athletes won’t lose their scholarships if they don’t sign, players are barred, until they do, from participating in team activities.
“The premise of these schools to bring unpaid players on campus during a pandemic and claim they should be fine while coercing them into signing a liability waiver ... there’s a lot wrong with this,” says Ramogi Huma, executive director of the National College Players Association.
Sports law experts hold differing opinions on the issue. Some believe the waivers aren’t true legal documents, are unenforceable and are only meant to convince athletes to adhere to safe practices inside and, maybe even moreso, outside school facilities. Others say this is another example of colleges asserting their power over young athletes and their families, most of them without representation, to gain protection from lawsuits.
Either way, this is compelling stuff, says sports attorney Gregg Clifton. “From a legal perspective, it’s fascinating. You’ll have a bunch of conflicting views in terms of enforceability,” he says. “It’s going to take a player, God forbid, getting sick and dying to determine enforceability, because I don’t think anybody is going to sue as long as they recover.”
Like universities, companies across the country are struggling with this issue. How do you invite employees and customers back to your businesses in a safe way without exposing yourself to significant liability? Already, some American employees sickened by the virus have filed suit against their employers. In fact, federal and state governments are considering proposals to provide businesses immunity from virus-related lawsuits as long as companies meet certain safety requirements. A uniform codified standard would benefit many industries, including universities, says Gabe Feldman, an expert on NCAA matters and the director of sports law at Tulane.
Like many restaurants and other commercial properties, colleges are fighting a Catch-22, says Clifton, a former sports agent who now practices law in Arizona. If they keep campuses closed, students may refuse to pay full tuition for an online education or decide against enrolling at all. But if they open campuses, schools open themselves up to virus-related legal issues. “I can understand, having represented a lot of universities, that they are very concerned about liability, but they need the revenue stream to stay alive,” says Clifton. “They’ve got to walk this fine line.”
At many schools, that line includes a waiver for athletes. However, the enforceability of such waivers is in question. It depends on the state in which the waiver is signed and the specific language in said waiver. Some states don’t recognize such contracts at all, says Ellen Zavian, a former NFL agent who is now a law professor at George Washington. She refers to many of these documents that athletes are signing as scare tactics used by universities to prevent the filing of lawsuits. “What it does is scares people enough to say, ‘I signed this waiver so I can’t do it!’” Zavian says. Ohio State’s own athletic director, Gene Smith, said the “Buckeye Pledge” is not a legal document but is more for educational purposes.
Some don’t buy it. Huma says athletes should not sign these documents. Leroy, the Illinois law professor, says athletes should lawyer up before inking their names on any such agreement. Leroy describes the waivers as “faulty.” A more legally sound waiver, he says, would inform the athlete that he or she should consult an attorney. “I think this underscores how vulnerable players are from pressure from their schools,” he says.
Waiver or not, an athlete suing a program over the contraction of the virus is a hard lawsuit to fight, attorneys say. How will the athlete prove that he or she was infected on campus while participating in team activities? Also, until mid-July, these workouts are deemed as “voluntary.” According to NCAA rules, coaches are not allowed to require or organize training and they can’t interact with players during workouts. However, many have long thought that staff members require athletes to attend voluntary workout sessions. “These aren’t voluntary,” says Huma. “Players have told me they’ve been told they have to go. The coaches tell them, ‘If you’re not willing to go, then you’re… dot dot dot…’”
That said, some programs are opening themselves up to “gross negligence" by not testing all athletes initially upon their arrival to campus, says Zavian. In a wide-ranging story in SI two weeks ago, many doctors claimed that initial testing should be a requirement and that schools choosing not to initially test every athlete are taking a giant risk. Since then, at least two schools that planned to only test symptomatic athletes, Missouri and Houston, have altered course. Both schools are now testing all athletes. “All it takes is one fatality for people to say, ‘How could a school do this?!’” Leroy says.
Before long, waivers will be commonplace in society, whether they are enforceable or not, attorneys say. Go to a movie theater, sign a waiver. A trip to a hair salon, sign a waiver. Work out at a gym, sign a waiver. Even regular students may need to sign a waiver before taking in-person classes. Already, waivers are common in sports. They’re often detailed on the reverse side of game tickets, protecting a baseball team, for instance, from a suit over injury from a foul ball.
On a more grand scale, these school-issued waivers are a piece of a much larger picture of NCAA reform regarding athletes' rights. They highlight the need for a greater athlete voice and vote on college campuses, says Feldman, who has extensively studied the recent sweeping movement on name, image and likeness. That includes changes in how the NCAA handles an athlete’s medical care. “I think NIL is the first piece of that and it’ll be a mistake if it stops at NIL,” says Feldman, echoing a sentiment from Congressional lawmakers.
The NCAA, meanwhile, is standing idly by—at least for now. In college athletics, there is discussion about the NCAA creating a uniform policy to protect itself and schools from virus-related legality, says Clifton, who currently represents many universities in on-going, unrelated lawsuits. “It makes the most sense for the NCAA to do something,” he says, “but it doesn’t mean it would be enforceable either.” With waiver requests emerging at only five schools so far, attorneys say many more are likely to surface over the coming weeks. Dozens of colleges could have something similar.
So, as Saturday’s Trump rally cranks up, thousands of his supporters inside Tulsa’s BOK Center will have signed away their legal rights—just like thousands of athletes across America. “The people going to the MAGA rally, they want to do this,” Leroy says. “There’s going to be a certain number of players that feel conflicted in returning.”