It’s no secret football is a huge moneymaker for the dominant Division I schools in the nation. Faced with the prospect of a season without ticket purchases, licensing fees, or endorsements, and sponsorships, many schools have done their best to bring athletes back, pandemic, or no. Because the NCAA rescinded its moratorium on sporting events in June, individual universities and conferences have been left to make their own decisions about who will play, and how. The question now is whether the NCAA regulations will keep student-athletes safe through months of competition.
Given the way other professional sports’ 2020 seasons have gone, it’s likely there will be outbreaks among those conferences that decide to proceed as normal—especially those where colleges and universities are still operating in person. The question, then, is what rights student-athletes have after coming down with a case of COVID-19.
COVID-19 Liability Is Complicated, Everywhere
When we’re in a pandemic, at what point does public health become a collective responsibility? This is the question insurers and courts across the country are being forced to grapple with as victims of severe COVID-19 cases file claims against those they say were at fault for their illness. Negligent employers have been challenged for endangering workers and consumers alike by failing to take measures to contain the virus. With at least some of the claims, it’s likely the plaintiffs are in the right. However, proving the source of an infection is much harder than proving that, for instance, a workplace accident resulted in one’s injury.
It’s unlikely we’ll have a consensus from the courts on these cases any time soon. Therefore, student-athletes and their families have no guarantee of support should a football practice or game lead to infection. To make a successful COVID-19 claim, they would have to show their school, athletic conference, or the NCAA itself was negligent in monitoring participants and then prove their infection was caused by a specific contact with another athlete. If a whole team gets sick at the same time, proof may be easy. If the virus only afflicts a few, those student-athletes may have trouble making a case that anyone entity was to blame.
What Are the Consequences of a COVID-19 Outbreak Among Healthy College Students?
A point the NCAA likely considered when weighing the risks of a normal sports season is whether the pandemic is likely to have a severe impact on most student-athletes. Unless they have a compromised immune system, evidence suggests this demographic is less likely to suffer dangerous levels of illness. However, COVID-19 is not only a respiratory infection; it affects the endothelium or the lining of one’s blood vessels. Patients may experience increased blood clotting, which can constrict or block blood vessels entirely. The infection has been found to affect everything from the brain to the heart to the gastrointestinal tract. Even healthy, young patients can suffer serious symptoms, and doctors aren’t yet sure the extent of the illness’ effect on this demographic.
It’s hard to say what the lingering effects of COVID-19 may be at this point. However, testing of those who recovered from the illness suggests:
- The heart muscle may be permanently weakened
- Scar tissue in the lungs can lead to continued breathing issues
- Patients may suffer Guillain-Barre syndrome, a post-viral condition that causes temporary paralysis
- After recovering, a patient may suffer chronic fatigue syndrome (CFS), which can prevent them from completing everyday tasks
There are also those who haven’t recovered from COVID-19 despite months of illness, which could be ruinous for a student-athlete. Even asymptomatic people may experience lung damage—a life-changing injury. Both would be heartbreaking for someone who had poured so much time into improving their skill only to have it rendered useless by an infectious disease.
In short, a case of COVID-19 might result in serious hospital bills for emergency care. It might also cause lasting disabilities that will interfere with the rest of a person’s life. We don’t know how common this is, but student-athletes and those who oversee them must keep this risk in mind.
Collectability in COVID-19 Claims
Assuming student-athlete faces major damages after a case of COVID-19 they caught at a sporting event, what then? How can they prove liability, and will they be able to recover any compensation? Based on past events, we think these claims might succeed.
The NCAA’s Dilemma
The NCAA seems to agree there’s a potential for costly legal action stemming from COVID-19 outbreaks. The organization has always sought to minimize its potential liability by requiring students to have health insurance that will cover any injuries sustained during participation in NCAA sports. This year, The Board of Governors went one step further, requiring member schools to cover COVID-19 medical expenses for student-athletes as a condition of participation in NCAA programs. By requiring multiple layers of coverage, the NCAA is likely doing its best to protect itself from large lawsuits. It’s hard to say how student safety figures into these requirements.
If we were on the NCAA Board of Governors, we might be worried, too. While the organization has catastrophic injury insurance, it’s unclear whether that policy will cover COVID-19 claims. Even if it does, it’s excess insurance—meaning that, even after the NCAA’s $90,000 deductible has been met, it only kicks in after other applicable insurance policies have hit their limits. The policy also comes with an exclusion clause for any athletes who have signed waivers to release their school from liability. This clause is likely the reason for the NCAA’s rule that prevents schools from requiring athletes to sign liability waivers before they participate.
Many insurers have been pushing back against any COVID-19 claims, and it’s likely to happen here as well. If any liability waivers signed by students are upheld by the courts, the NCAA is footing a huge risk. Senior Counsel at Shrader & Associates, L.L.P., Attorney Gene Egdorf, called these contracts “the fly in the ointment” when it comes to who can be held liable for COVID-19 cases. The NCAA could be stuck footing the bill if it is found liable for infections that are not covered by its insurer. However, the organization might lose more by postponing or calling off the season entirely.
Who Could Students Sue?
As of now, no lawsuits have been filed by student-athletes who contracted COVID-19 in the course of their sporting events. However, the NCAA isn’t the only organization that should be worried about the potential for large settlements. Here are all the parties an injured student-athlete might be able to sue:
- Public universities, which are protected by sovereign immunity except in cases of gross negligence. Students should note some states are waiving sovereign immunity during the pandemic, which will make it easier to bring a case against a state-run school.
- Private universities, which have no such protections, can be charged with neglect if they fail to follow NCAA or other applicable safety rules.
- Athletic conferences, which oversee the actions of a group of member schools, might be accused of failing to hold schools to reasonable standards that would prevent the spread of COVID-19 between student-athletes.
- The NCAA, which is responsible for the rules governing all college sports, can therefore be held liable for failing to enforce them if a lapse leads to the spread of COVID-19.
As we mentioned before, the legal issues surrounding COVID-19 infection are complex, and these suits may take years to resolve in courts. However, student-athletes and their families must know their rights and options.
You Can Sue the NCAA—We’ve Done It Before
The idea of suing the NCAA is not without precedent. In fact, Gene Egdorf has taken on the organization over its laxity regarding concussion risk for football players. By establishing itself as the rulemaking body for all of college sports, the NCAA is also accepting the responsibility of creating standards that can reasonably be expected to protect students from known dangers.
Whether the danger is endemic to the sport, as with traumatic brain injury and football, or situational, as with the COVID-19 pandemic, the NCAA must act in the interest of student-athletes and their safety. When it fails this mission, injured parties can file claims.
Between scrutinizing the validity of waivers, determining which parties can be held liable for a certain case, and considering whether any third parties were involved in endangering student-athletes, filing cases for coronavirus infections will be a complex and lengthy process. If you’re looking for legal help, you need a team like ours on your side. Not only does Shrader & Associates, L.L.P. have experience filing suit against the NCAA, but we also have a nationally renowned team known for litigating complex medical cases. We provide customized representation to meet each client’s needs and don’t give up in the face of resistance.
In a time of hardship for many families, a case of COVID-19 can add financial stress on top of the worry for an ailing loved one. If you or a loved one were infected because of someone else’s negligence, we want you to know your options.
Contact our team at (713) 787-3733 or send us a message to schedule your free consultation. We are currently serving clients via phone, email, and videoconferencing.