Even as the nation navigates the same pandemic and analyzes similar sets of data, these conferences, each with its own medical advisory board, have come to disparate conclusions. All leagues say they are prioritizing athlete health and safety, but their risk tolerances clearly differ. By playing a football season, schools have accepted the chance that an athlete who contracts the virus could suffer from severe complications. In doing so, they’re taking a legal risk, because if an outbreak on a team leads to an adverse outcome, schools will inevitably find themselves faced with lawsuits.
“When one takes gambles with human life, and it doesn’t work out okay, there’s an excellent probability that somebody is going to get sued,” said Brad Sohn, a Miami-based attorney who has represented professional athletes in health-related personal injury matters. “ … I think it’s certainly within the realm of possibility, if not probable, that something bad is going to happen [as a result of playing this football season] and somebody’s going to sue when that does happen.”
The NCAA, which prohibited schools from requiring that athletes sign coronavirus-related liability waivers, canceled its championship events for fall sports, but it does not control the top-tier Football Bowl Subdivision. The Football Championship Subdivision will not play its usual season. Divisions II and III have canceled, too. At the FBS level, 54 of the 130 teams will not play football this fall, while six conferences intend to carry on with fall sports.
College athletes fall into an age group that has an extremely low death rate, but some players could have underlying conditions that increase their risk of severe illness. The long-term effects of covid-19, the disease caused by the coronavirus, remain murky. College football decision-makers have recently grown concerned about myocarditis, the inflammation of the heart muscle, which can result from viral illnesses and lead to sudden cardiac death. Those outcomes could prompt legal action against schools, conferences and the NCAA.
The plaintiffs — in this case, athletes and their families — would probably pursue negligence claims, asserting that an entity such as their school failed to exercise reasonable care and that led to an adverse outcome. But they would have to prove the school’s negligence caused an athlete to contract the virus, which may be difficult.
“Could there really be lawsuits where schools have to pay out because of covid? I think that's tricky,” said Dionne Koller, a professor of law and the director of the Center for Sport and the Law at the University of Baltimore. “Could there be a lot of lawsuits over this? Undoubtedly, yes, there would be.”
In negligence claims, the plaintiffs could sue their school, their conference and the NCAA. The school’s medical staff has the most direct responsibility for the daily care of athletes and the enforcement of safety protocols. Conferences are offering guidance and requiring some uniform protocols while also deciding whether the season will go on. Nearly every school has followed in line with its conference, but universities can opt out on their own. Old Dominion, a member of Conference USA, did so last week.
The NCAA delegates responsibility to schools and conferences, which could protect the association in a lawsuit because it would assert that it doesn’t have a duty of care to the athletes. Sohn said that if an entity such as the NCAA has undertaken other responsibilities in areas related to sports medicine, the organization may still be liable for its lack of action. Schools, however, have a more clear duty of care.
A school’s defense would be the athletes assumed the risk of playing this season. The NCAA has required that universities honor the scholarships of athletes who opt out of the season because of health concerns. However, athletes could still fear sitting out because of the power imbalance between them and their coaches. They might worry that when they return for the 2021 season, they could have fallen out of favor with the staff that controls their playing time. But when compared with the assurance that all athletes have the choice to opt out, those intangible concerns would not help an athlete’s case much.
“You’d have to argue that there’s so much duress and that there’s so much pressure,” Koller said. “And of course the school’s going to be mounting its own side, saying: ‘Absolutely not. We told students that they’re free to do whatever they want to do.’ ”
For a school to successfully argue that athletes assumed the risk, the players would have to be fully informed about what could result from the coronavirus. If a school did not educate players about the underlying conditions that increase their risk of suffering from complications or about possible effects of the coronavirus, an athlete could assert that, even though he had a choice to opt out, he didn’t fully understand what he was opting into.
Athletes would then have to show that their school breached its duty of care. While the major conferences have advisory committees of medical professionals, Sohn said a lawsuit could question whether decision-makers sought guidance in good faith or “are they doing it merely to find somebody who’s going to rubber stamp whatever the individual program wants to do so that they can basically justify having people out there doing something that’s risky?”
The plaintiffs could argue the schools were aware of the medical risks of playing but chose to proceed anyway. Perhaps evidence of leaders choosing to prioritize the financial need of holding a season over the athletes’ safety could be found through the discovery process. But even without explicit proof, a jury could be asked to make the determination of whether a school breached its duty of care.
“If you saw evidence of a football program’s tremendous financial stake in having football versus not having football,” Sohn said, “and then also were able to provide evidence of potentially really shoddy protocol, you could then ask a jury to make the inference that A was linked to B. So it need not be the true smoking gun.”
Other conferences assessing the risks of playing and deciding against holding a fall season “definitely strengthens the argument that a school or a conference [that chooses to play] is breaching its duty of care,” Koller said.
To win a lawsuit against a school in these scenarios, “you'd probably have to show that there was a known failure to follow guidelines,” said Jeremi Duru, a professor of sports law at American University. A breakdown in medical protocols, such as the failure to sanitize equipment or a coach instructing athletes not to report symptoms, would be the simplest way to prove there was negligence.
But a plaintiff would still have to identify a causal link between that negligence and the harm an athlete suffered, which would be difficult. College athletes will not live and practice in a bubble, so there would need to be proof that an athlete contracted the virus as a result of being part of the football program.
“We can all sort of surmise that putting a lot of athletes together in a sport where there’s lots of close contact during a raging pandemic is a bad idea and is probably going to cause cases to spike,” Koller said. “But if you look at actually litigating a case like this, where you have to plead factual allegations, you’ll have to show that that kid got covid from playing on the football team and didn’t get covid from going out to a bar.”
The successful lawsuits would involve athletes who essentially did nothing but attend football practices and meetings. Attorneys might hire contact tracing experts who could link the athlete to an outbreak on the team. They would still have to show that the school breached its duty of care through not following proper protocols.
“I do not doubt that there will be lawsuits,” Duru said. “The question is whether lawsuits would ultimately be successful. I think what'd you probably see are lawsuits and then, depending on the facts, a fair number of settlements, because I'm not sure that universities want to find themselves going down this line.”
The schools would have some of these legal elements on their side — that athletes assumed the risk or that there’s no clear causal link between an athletic department’s carelessness and an athlete’s harm. But Koller cited the U.S. women’s national team’s equal pay lawsuit against U.S. Soccer. A judge rejected the team’s argument that it has been underpaid relative to the U.S. men, but U.S. Soccer still lost “in the court of public opinion,” Koller said.
No school wants to deal with a lawsuit. No coach wants to recruit athletes who know former players have sued the school. Any lawsuit — whether it’s won, lost, settled or dismissed — could hurt the school financially and in perception.
“We can all see with our very own eyes that this is not safe and it’s exposing football players to an unreasonable risk of harm,” Koller said. “Whether the NCAA or schools can come up with one of these defenses and make it stick, either way, they’ve already lost.”
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