CHICAGO — When Illinois athletes prepared to return to campus for voluntary workouts earlier this month, they were asked to sign a form if they wanted to rejoin teammates.
The document asked athletes to responsibly follow guidelines to reduce the spread of the coronavirus — such as completing a virtual screening, reporting to sports medicine staff any known exposure to COVID-19 or any symptoms, wearing a mask in public places and sanitizing hands frequently — and to agree to testing.
Several other Big Ten schools — but not all — asked their athletes to sign similar documents, as have many programs around the nation. A refusal to sign would not revoke an athlete’s scholarship, the universities made clear, but the athletes could be held out of competition.
Like the debate about the overall safety of returning to workouts amid a pandemic, these documents also open questions about the legality and ethics of asking unpaid college students to sign them.
“Any document anyone signs can come up in court,” said Rachel V. Rose, a Houston-based attorney representing clients on matters involving regulatory issues of healthcare and the Health Insurance Portability and Accountability Act (HIPAA). She also teaches bioethics at Baylor College of Medicine. “That is a reality. If you are signing something, one could assume or presume that it could come up later down the line.”
Wording matters. The fact most of these schools do not explicitly call the documents a waiver or ask athletes to sign away their right to bring litigation is important.
Many schools call the documents a pledge and say they are not intended as legal documents or to deflect from potential liability. Minnesota said it is an “education document,” while other programs called it an acknowledgement.
“A waiver has to be clear, knowing and voluntary whether you’re in state court or federal court,” said Michael LeRoy, a University of Illinois professor for the School of Labor and Employment Relations and College of Law. “That’s in California or Florida or Illinois. That is the common-law test for a waiver.
“A document that’s a pledge, a worst-case scenario evolves and the school says, ‘Sorry, we’re not responsible,’ the athlete would then file a negligence lawsuit. Then the school would respond by saying you waived your rights here. On those facts, this would not stand up as an enforceable waiver. To be enforceable, it really has to be clear.”
In the Big Ten, Iowa, Ohio State, Indiana, Minnesota and Maryland are asking athletes to sign forms acknowledging the risks related to the coronavirus and their return to campus for voluntary workouts.
Some athletic departments, including Illinois’, will not release test results to the public, although they are alerting local public health officials. More than half of 66 Football Bowl Subdivision schools the Associated Press contacted said they did not plan to release the number of athletes with positive tests.
At least 40 Division I football programs have announced positive tests.
Kansas State said it would shut down workouts for two weeks after 14 players tested positive. Boise State suspended workouts and closed campus after eight players tested positive. Houston suspended all football operations after six players tested positive.
Clemson announced June 19 that 28 athletes and staff members tested positive, including 23 football players. LSU quarantined at least 30 players for testing positive or coming in contact with someone who did. Texas announced 13 football players tested positive.
Indiana, on the other hand, announced no positive cases among 187 athletes, coaches and staff members who were tested, and Notre Dame said only one athlete tested positive.
Athletes contracting the coronavirus, even with restrictions in place and Centers for Disease Control and Prevention guidelines being followed, doesn’t bode well for the future of college sports this fall, some experts said. Compared with youth sports and its hyperlocalized play and professional sports with its abundance of resources, college sports might face the most daunting challenge.
Dr. Anthony Fauci, an infectious disease specialist advising the White House, told CNN that football might have to follow the NBA and NHL in creating an isolated “bubble” for players. But that’s just not realistic at the college level.
Regardless of having the athletes sign forms, teams have little control over what they do outside of their limited time under athletic supervision.
If full-on practices and competition resume, that complicates attempts to isolate the virus even more. A test before a game would not indicate whether the athlete picked up the virus during his travel to the game site, and it’s unrealistic to expect teams to wait a few days in quarantine after travel to get an accurate test before competition.
“College would be the hardest to come back, short of a vaccine or an incredibly effective treatment or a game-changing breakthrough,” said Kathleen Bachynski, an assistant public health professor at Muhlenberg College. “The reason I’m struggling to see college sports come back, it’s that perfect storm with the risk of travel, the risks of residential dorms and other aspects of campus with a lot of interaction. You don’t have the resources and paid athletes and the other amenities that professional leagues have. It sits at this really challenging intersection of higher risk.”
Ethically, she questioned whether college athletes are being used as “guinea pigs” for Americans’ desire to return to normalcy. The disproportionate percentage of Black student-athletes compared with most student populations also raises ethical questions about whom universities are putting at risk.
“If this was an experiment that has had to go through the institutional review board, would it be approved?” Bachynski asked. “We’re still learning a lot about this virus, and if you are putting students in a position where there is travel involved and they’re in close quarters like locker rooms, you are taking a gamble. You are taking a gamble even if they are 18 to 22 and as far as we know don’t have predisposing conditions for their health.”
LeRoy said the pledges could be interpreted at face value, that teams are motivated to keep their players as safe as possible.
But in extreme circumstances of hospitalization or death, things could get complicated — and litigious.
LeRoy said the NCAA’s primary rule on certification of insurance coverage comes into play. The rule requires all student-athletes to have a personal medical insurance policy held by themselves, parents or guardians or through the school in order to participate in sports.
“Hypothetically if those players are being treated at no cost to themselves by the university, it’s a moot point,” he said. “It’s a young population. They’re at much lower risk for death than others. This gets tricky when you have a case that requires hospitalization or trickier if, God forbid, a student-athlete dies from a COVID infection incurred during practice or competition. Then I think these forms come into play.
“It’s unlikely for Power Five conference schools (that) a student-athlete can step on the field and have no coverage. The question is does it cover COVID, and even if you assume it does, the student-athlete is subject to deductibles and copays like the rest of us.”
A lawyer would likely advise an athlete not to sign the form or have the lawyer sort out more details, LeRoy said.
“After our health is improved, we’re going to worry what the bill looks like,” he said. “Someone is going to get stuck with a big bill. If a player had representation, the attorney would likely advise them not to sign or the attorney would ask questions: What happens if? And who pays? And how much? And what are the terms and conditions?”
The forms aren’t necessarily problematic, Rose said, as long as the school abides by its own standards. If she were arguing a case concerning this scenario, she said she would “home in on” the Public Readiness and Emergency Preparedness Act from 2005, which provides immunity from tort liability claims except in cases of willful misconduct to individuals or organizations involved in the manufacture, distribution or dispensing of medical countermeasures.
“The school has a responsibility — and by sending it out in writing, they acknowledge they do — and you (as an athlete) have a responsibility,” Rose said. “I think that’s fair. Did the school do everything they said they would do? If the school ceases to provide Purell or fails to provide face masks, that’s a very different situation than the school doing everything possible to make sure it’s a safe environment.”
The weeks and months ahead will determine whether practices can resume and if games can be played.
Bachynski, who said she is a sports fan, remains skeptical that athletes — despite their young age and relative health — can be safely protected.
“I wouldn’t be confident in saying (to an athlete), you’re less vulnerable and you’re vulnerable and categorizing everyone,” she said. “Maybe they have sickle cell (anemia) or some other underlying condition. Even if I could confidently say which athletes would have a mild case and which would be more likely to have a severe case, I think the kind of bubble you would have to create would be incredibly difficult.”
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