The Legal Impact of COVID-19 on College Sports

By: Alyssa Levy

While the entire college experience has been uprooted by COVID-19, the pandemic has barred students not only from the classroom but from the fields, arenas, and stands as well. On May 27, the University of Miami School of Law’s summer class on the impact of COVID-19 on the sports and entertainment industry had the privilege of attending a fascinating webinar led by Donna Shalala, U.S. Representative of Florida’s 27th district, Tom McMillen, President and CEO of LEAD1 Association, Richard Giller, Partner in Insurance and Recovery at Pillsbury Law, and Peter Carfagna, Chairman and CEO of Magis, LLC and Co-Director of the Sports Law Track of the Entertainment, Arts and Sports Law LL.M. program at the University of Miami School of Law.

The panelists spoke to over 900 participants about the legal and financial ramifications of COVID-19 on collegiate athletics. Topics included the impact of event cancellation and business interruption insurance policies on college sports, the future insurance issues that may arise with the re-start of college sports, the cultural impact of COVID-19 on college sports, including the trickle-down effect from declining participation in youth sports programs, the consequences resulting from cutting athletic teams and programs, including Title IX considerations, and protecting against liability arising from the return of college sports. Each panelist brought a unique perspective to the plethora of COVID-19 related implications on college sports, including both the effect COVID-19 has had on universities to date and how the universities may be affected in the future.

One of the topics that the discussion focused on was what the return of college sports may look like in the coming seasons. The discussion often produced more questions than answers. For example, how will schools and athletic departments set standards on how to test their student athletes, and what will happen if opposing schools have different standards? How will schools enforce social distancing both amongst athletes and amongst fans? How will schools tackle contact tracking and approaching a student or coach that does not feel comfortable returning to athletics?

Representative Shalala voiced a concern that the NCAA must avoid the confusion that would arise if a school with one set of testing and distancing standards plays a school with a more lenient set of standards. She argued there needs to be a uniform set of guidelines set by the NCAA. For example, she suggested a regular regime on COVID-19 testing for student athletes in conjunction with guidelines set out by the CDC. Based on the fact that the test is non-invasive and could be funded by the federal government, regular testing could be a way to ensure safe practice and playing and keep up with contact tracking.

Representative Shalala’s concerns seem to be extremely well grounded, as any future in collegiate athletics without a common structure to provide consistency and direction would undoubtedly result in even further delays to an already turbulent sports season. These measures are not only necessary to provide a smooth transition back to college sports, but they are also imperative to ensure the health and safety of the players that do choose to return. While I largely agree with Representative Shalala’s opinion, I worry that a plan that prioritizes access to testing for student athletes over the larger student body might invite backlash. However, as testing becomes cheaper and more accessible this will become less of a concern.

Mr. Giller explored how schools can insulate themselves from liability by including language on the backs of tickets specifying that fans take on an assumption of the risk when choosing to attend sporting events. This can immunize schools so long as they uphold a general duty of care. Such clauses could be akin to ticket back language already used by professional teams and schools that shift liability from teams to fans for the risks involved when attending a sporting event. These types of clauses would, for example, protect a baseball team from liability if a fan is hit with a foul ball.  Mr. Giller also suggested that athletic directors should meet with their administration, general counsel, and potentially outside counsel to review insurance policies. This recommendation underscores the importance of schools’ lawyers, risk managers, and insurers all working together to instill a commercial general liability policy or business interruption policy to safeguard against potential lawsuits and revenue losses. It also seems to be the best way to ensure to ensure that all an athletic department’s bases are covered (no pun intended) as it approaches the mitigation of liability from every possible angle.

The panelists discussed issues regarding not only the safety of players and fans, but the coaching and training staff as well. One interesting idea suggested was that older coaches that are within the at-risk age range or that are immune compromised could coach from the press box rather than on the field or court itself. This forward-thinking approach is reasonable, as we have already seen this type of “socially distanced” coaching method implemented by professional teams while club facilities have remained closed. The NFL and NFLPA have implemented a voluntary offseason program consisting of classroom instruction workouts and educational programming all via videoconferencing.

Because these are unprecedented times, there is no way to know with absolute certainty what the return of college sports will look like. But recent moves by the NCAA might help predict what to expect. On May 1, the NCAA released a document entitled “Core Principles of Resocialization of Collegiate Sports” enumerating nine core principles to guide restarting sports and a three phase guide to resocialization with suggestions on everything from temperature checks to sanitation protocols. NCAA President Mark Emmert has stated that it will be up to the individual schools, not the NCCA, regarding the process for resuming college sports. The NCAA has also established a COVD-19 advisory panel consisting of leading experts in the medical, public health, and epidemiology fields, as well as college athlete liaisons to advise NCAA schools on how to remain compliant with evolving CDC protocols.  The panel can merely give advice and recommendations, but it cannot mandate what schools ultimately do. Further, on May 7, the American College Health Association released guidelines suggesting the creation of a COVID-19 Action team and action plan, heightened training and education for athletic staff, testing procedures, assessment of transmission capabilities for each individual sport, and inspections of physical facilities.

While the COVID-19 advisory panel has developed a robust set of guidelines, they may run into challenges implementing these measures due to their lack of authority. Their suggestions, while grounded in expert opinions, still must be deferential to local, state, and national mandates, as well as schools’ leadership. Further, these guidelines will likely have to be continuously modified as the government and governing committees adjust their own health and safety recommendations. Additionally, the Power 5 conferences may be reluctant to heed to NCAA guidelines, especially in light of the clashes they are currently facing over the recent name, image, and likeness developments. Nevertheless, the fact that the advisory committee has suggested a rollout of three distinct phases of resocialization will help to accommodate a broader range of national standards and provide further flexibility. If nothing else, these measures will at least serve as a reference for best practices and a general standard for schools to follow.

The chief medical officer for the NCAA has acknowledged the challenge of implementing these guidelines, emphasizing that there cannot be a “one size fits all” approach for an organization with over 1,100 members.  It seems that each regulatory body giving their recommendations has emphasized one general theme: that all practices need to be compliant with the broader nationwide, state, and local regulations to ensure the safety of the student athletes. It will be interesting to see how all the stakeholders involved in college sports respond to these broader regulations in order to navigate the return to college sports, protect their own interests, and, most importantly, keep student athletes and fans safe.

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