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Law360 (June 19, 2020, 9:27 PM EDT) -- At least two prominent universities are raising eyebrows by requiring athletes to sign forms notifying them of the risk of contracting the COVID-19 virus, but experts say the forms may be difficult to enforce if challenged in court.
The risk forms at Ohio State University and Southern Methodist University in Dallas come as schools in some states are starting to allow athletes back on campus and as the NCAA pushes toward a fall season in some form. The NCAA D-I Council this week approved a preseason plan for college football where schools may hold mandatory weight training, conditioning and walk-throughs as early as next month.
Experts said schools must take precautions to ensure the health and safety of their athletes and broader campus communities, including by forcing athletes to comply with certain rules like washing hands or wearing face masks. But COVID-19 forms, insofar as they attempt to make athletes waive liability against the schools should those precautions not work, would likely face close scrutiny if they result in litigation.
"I really don't think they are enforceable," said John T. Wolohan, an attorney and sports management professor at Syracuse University.
Wolohan said typically, in order for a liability waiver to hold up in court, the person signing must understand the risks they are facing, and freely and voluntarily agree to assume those risks.
"As long as the student-athletes can assume the risk voluntarily, that is OK," Wolohan said. "But once it is kind of imposed on them, either you lose your scholarship or you play, then it doesn't seem like it is voluntary in nature."
Enforcing waivers of liability is a matter of state law, but generally the waiver must be clear and unambiguous, must be entered into freely and intentionally, and cannot waive liability for reckless or willful conduct. In Texas, SMU's home state, courts require liability waivers in an agreement to be clear and conspicuous, and will not enforce agreements if they are deemed unconscionable. However, Texas courts have upheld waivers in cases when a signee has little education and little to no bargaining power to change the terms.
Both OSU and SMU told Law360 they are not threatening to revoke athletics scholarships or eligibility for athletes who do not sign, but the forms say they are a condition for the players using the schools' athletic facilities, which could prevent them from participating in athletics this upcoming fall season. Experts say that suggests the athletes have no choice but to sign and no bargaining power to negotiate a more limited waiver.
"I think a court would start to take a look at the nuts and bolts" of the forms, said attorney Bradley Shear of Shear Law, who has worked for the National Football League Players Association. "Was it clear? Was it unambiguous? Did they understand the rights that the athletes were potentially giving up? Did students ultimately consult a lawyer before signing?"
It is not yet even clear what the risks of the virus are to participation in college sports, meaning a court could be reluctant to enforce a waiver, Shear added.
In a sign that the risks of live sports may not be fully understood, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told CNN on Thursday that NFL and college football might not even be possible this year unless the players can be kept in a complete bubble and tested constantly.
OSU and SMU said the forms, which were obtained by Law360, are not intended as a legal liability waiver. But experts contend they both contain provisions that read much like such an agreement. At the very least, the colleges could use them to argue that an athlete assumed certain risks.
The OSU form, which the school calls a "pledge," does not use the term "waiver." It asks athletes to acknowledge that "although the university is following the coronavirus guidelines issued by the CDC and other experts to reduce the spread of infection, I can never be completely shielded from all risk of illness caused by COVID-19 or other infections." The school also requires incoming freshmen who have not yet turned 18 to have a parent or legal guardian sign.
The SMU form specifically asks athletes who are returning to practice for voluntary summer workouts to "waive and release SMU, its employees, trustees, officers and agents from and against all claims, liability, rights, causes of action, costs, attorney's fees and expenses of any nature whatsoever … for any injury, loss, or damage, due to contracting the COVID-19 virus."
In a statement sent to Law360, SMU Director of Athletics Rick Hart said the school consulted internal and external colleagues and an acknowledgment form "emerged as a best practice" used by "peer organizations and facilities such as schools, gyms and daycares."
"Our intent in providing the document is to confirm that our student-athletes acknowledge that there is risk associated with co-existing with a pandemic, particularly since they will be operating under our protocols for only a short period of time each day during this voluntary summer workout period," Hart said. "Our intent is also to make clear that if, for any reason, a student-athlete is not comfortable participating in activities at this time, it will not impact their eligibility or their scholarship status."
A spokesman for OSU confirmed to Law360 that similarly, they do not consider it a legal document and that a scholarship is not affected if an athlete chooses not to sign.
Duke University Law School professor Paul H. Haagen, an expert on NCAA athlete issues, said the language in the SMU risk form is "brutal" in that it still appears to attempt to waive liability. Still, he noted the schools are trying to balance getting all the athletes to buy into taking precautions without seeming to be punitive.
"I think really what they are concerned about is basically ensuring that the athletes understand that they have to cooperate in protecting theirs and other players' health and safety," Haagen said. "I would think legally they are on the hook if they are negligent. It is really more about putting the player on notice."
Haagen pointed out that there is some precedent, as the NCAA in 2010 started requiring athletes to be tested for the sickle cell trait, a genetic blood condition, or sign a waiver after a Rice University football player died suddenly at practice from a condition linked to sickle cell.
However, experts said that any COVID-19 forms that do try to revoke a scholarship may not be legal and could make a waiver more coercive in nature, and thereby less enforceable. Many NCAA athletes are returning or have already committed to play for a school this fall.
"They could try to do that, but I think if the school did that not only would the school be subject to adverse publicity, there is a likelihood the school would be sued and they would lose," said Brian Socolow, co-chair of the sports practice at Loeb & Loeb LLP.
Experts acknowledge the pandemic is an unprecedented event for the NCAA sports system, and questions remain about the feasibility of hosting college sports in just a matter of weeks, with the virus still spreading and spiking in some states that have reopened, including Texas.
SMU reported this week that of the 75 athletes who voluntarily returned to campus and were tested, five had tested positive for the virus. Those athletes are being isolated for two weeks and receiving regular health screenings.
Any school that seeks to use a liability form as a shield against potential legal claims from athletes down the line would likely face a wave of negative publicity.
"I really think at the end of the day a school would not want to litigate this," Shear said. "I don't think they would want to be the first one out there to have a case being sued for potentially gross negligence and have them argue, 'Well, we had [the athletes] sign a waiver.'"
--Editing by Michael Watanabe.
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