Law360 (July 17, 2020, 2:15 PM EDT) --
Therefore, the NCAA places the financial burden of any health care costs solely on student-athletes. While the NCAA does carry catastrophic injury insurance, that coverage is only an excess policy, subordinate to student-athletes' primary health insurance, and it will not cover student-athletes' health care costs if they are infected with COVID-19. In fact, the NCAA's catastrophic injury insurance coverage specifically excludes illness or disease.
In June, the NCAA lifted its suspension on athletics and many NCAA institutions have resumed in-person practice. The obvious consideration here is the student-athletes' increased potential to be exposed to COVID-19, as many student-athletes all around the country have already tested positive for the disease.
If a student-athlete contracts COVID-19 and the illness is serious enough to warrant a hospital stay, their health insurance, if they have it, will foot the bill. If a student-athlete that contracts COVID-19 does not have insurance, or the insurance does not cover the entirety of the hospital bill, the student-athlete will be responsible for paying the hospital bill.
We know that hospital bills, especially those involving prolonged stays, can be very costly; so costly, in fact, they could derail a student-athlete's financial stability and future. Thus, we must ask, if a student-athlete contracts COVID-19 and is hospitalized, or worse, dies, can the athlete and/or the athlete's family bring a lawsuit against the school, athletic conference or NCAA?
If the student-athlete who was infected with COVID-19 attends a state school, we must first look at whether the school will be legally protected by sovereign immunity. Sovereign, or governmental, immunity is the legal doctrine that protects the government — i.e., publicly funded schools — from lawsuits to which the government does not consent.
Some states have waived sovereign immunity by passing some version of a tort claims act, whereby each respective state has consented to be sued for torts against the state. It should be noted that many of these tort claims acts, some of which have different names, have enacted exceptions, limited sovereign waivers that only apply to certain claims, limitations on the amount of recovery, and some possess limited immunity and have established a specific procedure for bringing such claims.
This doctrine will only apply to state schools; it will not apply to private schools, athletic conferences or the NCAA.
Many states, including those with tort claims acts, differentiate between discretionary functions and ministerial or operational functions. These distinctions are important because, generally, the government will not be liable for negligent performance of discretionary functions, but could be liable for negligent performance of ministerial functions.
Discretionary functions mainly involve policies and/or rulemaking wherein the government official used discretionary decision-making. Ministerial or operational functions involve the implementation of those policies and/or rules.
In response to COVID-19, the NCAA released what it calls, Core Principles of Resocialization of Collegiate Sport, or CPRCS, which basically follow the first set of directives put forth by the Centers for Disease Control and Prevention for safely reintegrating into society. While the CPRCS sets forth guidance policies that institutions should consider when deciding whether to resume athletics, it does not comment on the development or implementation of such policies.
Additionally, the CDC lacks any guidance on the same in terms of schools opening in the fall. Thus, in deciding whether an institution can be held liable if a student-athlete contracts COVID-19 and incurs medical bills, we must first classify the institution's actions.
If the institution creates its own school-specific health and safety procedures to protect student-athletes, and the institution follows those procedures, the state could argue that it cannot be liable because those actions were discretionary.
The institution could argue that with no mandatory measures from the federal government or the NCAA, the institution's decision regarding its health and safety procedures was purely discretionary because it was solely responsible for determining what specific policies to implement in order to protect its student-athletes from contracting COVID-19.
But, the CPRCS has put forth specific guidance that institutions should consider, which includes, but is not limited to: social distancing, temperature checks, testing and isolation, sanitation, use and disinfection of common and high-traffic areas, school business travel, and monitoring of symptoms. Therefore, if the institution omits the implementation of certain health measures mentioned in the CPRCS, or negligently performs such measures, the student-athlete would have a good argument that the institutions actions were ministerial, thus, subjecting it to liability.
This analysis will largely depend on the legislation each state has in place along with the specific facts of what and how each institution implemented the safety measures to protect student-athletes. It must be noted though, if the institutions' actions regarding its COVID-19 health and safety procedures for student-athletes were grossly negligent or rise to the level of misconduct, most states' sovereign immunity protections will not apply in such instance, and the student-athlete may sue and recover from the state.
Conversely, private schools, athletic conferences and the NCAA do not enjoy sovereign immunity protections and the student-athlete or the student-athlete's family — if the student-athlete is under 18 or dies from COVID-19 — can bring a lawsuit against one or all of the respective entities. There is plenty of precedent regarding student-athletes suing the NCAA and member conferences for personal injury claims. One recent example is the onslaught of lawsuits addressing student-athletes that suffered concussions while participating in the NCAA.
There is a caveat though, some states, and the federal government, are considering what amounts to COVID-19 liability immunity for businesses, which means, generally, businesses will have immunity from civil liability for claims relating to COVID-19. At the moment, only a small number of states have passed such a measure, and all of the legislation passed thus far only protects health care organizations directly dealing with COVID-19.
So, unless such a legislative measure is passed that protects businesses from COVID-19-related claims, all NCAA athletic conferences and the NCAA could face potential liability for COVID-19-related claims from student-athletes.
The reason being, while individual institutions are responsible for the health, safety and well-being of their student-athletes, both individual NCAA conferences and the NCAA can mandate policies each institution must comply with in order to participate in the respective conference or in the NCAA. Such power yields responsibility, hence placing a parallel duty on both conferences and the NCAA, to ensure measures are in place safeguarding student-athletes' health and wellness.
Another potential speed bump to litigation for student-athletes is that some schools are requiring athletes to sign waivers, basically assuming the risk of contracting COVID-19, before they can begin workouts or team activities on campus. While each waiver must be individually scrutinized for its legal enforceability, such waivers could preclude student-athletes from bringing suits against their respective institutions.
If these waivers are found enforceable and preclude student-athletes from suing the school, the next question is: Do the waivers protect the NCAA or its member conferences from liability? Again, that depends on the specific language in each individual waiver.
If the waiver only has language to protect the institution, such as The Ohio State University's COVID-19 pledge, then, individual NCAA athletic conferences and the NCAA will not be protected from liability and student-athletes may bring suit against them for COVID-19 claims.
Turning to the merit of the claims that would be brought against any of the aforementioned parties, specifically negligence claims whereby there was negligent performance of duties to protect the student-athletes from contracting COVID-19, in some cases causation could potentially be very hard to prove, while in others it may be quite evident. In order to recover for a COVID-19 claim, the student-athlete must prove he/she caught the virus because either the school, athletic conference or NCAA negligently performed its duties to protect the student-athlete.
The student-athlete could argue that but for returning to campus to participate in NCAA athletics, the student-athlete would not have contracted the virus. Further, the student-athlete could represent that the NCAA, the individual athletic conference and the school valued potential revenues over the health and wellness of the student-athletes by resuming sports too soon.
Even so, this is a tenuous argument if the student-athlete cannot point to an exact breach of duty, i.e., lack of testing and monitoring, and an exact point of contact with an infected person from whom they contracted the virus.
The when and where of contact with an infected person is an important fact as the student-athlete will have a very hard time pointing to their school, conference or the NCAA if the student-athlete contracts the virus at a bar. Contrariwise, if an entire team gets infected with COVID-19, a much easier argument can be made that these parties are at fault, res ipsa loquitur — a legal doctrine that presumes negligence because, based on the facts, there is no alternative reasonable explanation for the occurrence.
Practically, if COVID-19 cases by student-athletes were to ensue, they would likely fall somewhere in the middle of the two situations above. For example, three football players hang out at one of their apartments one night after practice and a few days later all three test positive for COVID-19.
Again, the circumstances will dictate the outcome, but in some cases there is really no clear answer. If the infection is traced back to an NCAA event, say, an NCAA staff member that was present at a media day, then we can assume that at least the NCAA would have some potential liability exposure.
What if one of those players returned home, contracted it from a family member, and then passed the virus to his two teammates? Or, instead, the player went to a nightclub and did not disclose that fact to his teammates?
Furthermore, what if those three are roommates? How do we assess liability in those instances? Truthfully, there is no way to discern whether the two other teammates caught the virus in the shared residence or walking to football practice. These would be fact-driven inquiries and the court would be tasked with deciding how far liability could extend.
Lastly, it is possible that institutions, conferences and the NCAA could be liable for the negligence of third parties. If a student-athlete suffers an injury at practice and needs immediate medical attention but all hospitals in the region are full because of COVID-19 patients and the student-athlete's condition worsens — heat exhaustion turns into a heat stroke, which can cause death — should there be liability?
In COVID-19 hot spots, it is very foreseeable that hospital beds are at capacity. Thus, allowing practice knowing a student-athlete could sustain an injury requiring hospital intervention, and knowing that hospital capacity is near or at its max could be a basis for liability as the parties have a duty to keep the student-athletes safe and prepare for such injuries.
Additionally, if an institution decides not to release their COVID-19 infections and an outbreak arises, whereby student-athletes from a different institution who came on campus for an NCAA event are infected, who, if anyone, is liable? In that circumstance, certainly, the school that did not release the information or disclose the outbreak has exposure.
Further, the student-athlete's school, the athletic conference and the NCAA could also have potential exposure because it is incumbent upon all of those parties to protect the health and wellness of the student-athletes. Parading the student-athletes into an outbreak zone because a school decided not to disclose its COVID-19 information would be a breach of their duties.
Certainly, not all athletes that contract COVID-19 and incur expenses or die will be able to bring suit against all parties involved. As discussed, procedural safeguard exists and factual contingencies could preclude recovery.
Likewise, courts would have to decide how far liability extends and where the line is drawn in terms of when and where a student-athlete is infected with the virus. Ultimately, if NCAA sports resume in the fall, the NCAA, individual conferences and individual institutions should consider an effective method of ensuring student-athletes are financially covered if they incur hospital expenses related to COVID-19 because of the potential exposure to liability.
Spencer J. Webster is the principal attorney at SJW Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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