Author: Alexander Sable
The global pandemic of COVID-19 has disrupted every facet of life, including higher education. In the United States, most universities were forced to close at the onset of the pandemic and move to an entirely remote learning platform. As universities prepare for the upcoming fall semester, in many parts of America, the fall semester also means college football. As professional sports across America have slowly begun to restart, college football programs are faced with a multitude of decisions around if and how they will be able to compete in the upcoming fall season.
For professional sports leagues, the decision to compete in the face of the COVID-19 pandemic was made easier through collective bargaining agreements between the owners and the players unions of each league. Unlike their professional counterparts, college football players are not unionized and are not subject to a collective bargaining agreement. Thus, the decision on whether to play in the fall is not being made collectively by the universities and the players, but rather by individual universities or the conferences of which the universities are members.
While some conferences and individual universities are attempting to work together to establish uniform regulations to curtail the spread of COVID-19 (i.e. testing, practicing and cleaning of facilities), these regulations will only be applicable to the members of these specific conferences. Other universities who are not parties to these discussions will only be able to adopt the regulations if they are financially able. As demand continues to surge for COVID-19 testing, many universities may not be able to afford testing their players. Thus, due to the differing financial demands and conference memberships of universities, it will be difficult for college football as a whole to adopt uniform regulations pertaining to COVID-19.
For example, the Louisiana State University (“LSU”) Tigers are currently scheduled to play against the University of Texas San Antonio (“UTSA”) at Tiger Stadium in Baton Rouge, Louisiana. As part of their contract for the game, UTSA is being paid US$1.4 million for the privilege of traveling to Tiger Stadium to compete against LSU. LSU is a member of the Southeastern Conference (“SEC”), one of the conferences that is working towards adopting uniform regulations, while UTSA is a member of the Conference USA Football Conference (“CUSA”), who is not a party to these discussions.
It is entirely possible that the SEC and CUSA adopt different procedures for how to curtail the spread of COVID-19 before the start of the season. As a result, one university may have more stringent testing policies than the other. What will occur if, for example, LSU opts not to play the game because UTSA is not testing their players for COVID-19 as regularly as LSU? Will either party be in breach of contract? Will the universities have to reschedule or find new opponents? While the answers to these questions are currently unclear, universities will need to quickly make decisions given the ever changing landscape of the COVID-19 pandemic.
In addition to athletics, universities face the more practical decision of whether to open to students for the fall semester. Although universities are actively working on solutions to hold classes in person for the upcoming fall semester, some college football programs are already dealing with the decision to hold classes virtually in the fall.
San Diego State University is a part of the California State University system, which has already announced that it has advised all of its member colleges to conduct classes remotely for the upcoming fall 2020 semester. Unlike other California State universities, San Diego State is attempting to play football this fall and has proposed a limited re-opening plan which would allow for its college football team (amongst other athletes) and a limited number of students to return to campus in the fall. While the proposal is not explicitly focused on football, it appears that one of the primary motivating factors behind the proposal is to allow for the football team to play in the upcoming fall semester. Therefore, San Diego State may have to deal with the fallout of defying the California State University system’s guidance and re-opening their campus on a limited basis to play football.
For universities that choose to open in the fall, it appears to be a matter of when, not if, college students will become infected with COVID-19. The same is doubly true of college football players who will be exposed to a multitude of COVID-19 risks in their football facilities. In fact, there have been rising COVID-19 infection rates amongst college football players at a number of universities that have commenced practice for the fall season.
To combat the legal risks associated with players becoming infected with COVID-19, some universities have begun asking their players to sign COVID-19 waivers. While universities have deemed these waivers to be educational pledges rather than releases of legal liability, in all instances the players (and in some cases their families too) are giving up legal rights they would have otherwise had in order to play football.
Of particular interest is Ohio State University’s “Buckeye Pledge.” The Buckeye Pledge requires Ohio State University football players to agree to undergo COVID-19 testing and take necessary COVID-19 precautions such as wearing a mask and practicing social distancing. Further, the players are required to acknowledge that they could be exposed to COVID-19 and may contract the disease even if Ohio State University and its athletes take all necessary safety precautions.
In addition to being called a “pledge” instead of a “waiver,” it also explicitly states that failure to uphold the pledge will not lead to the revocation of an athletic scholarship. However, it is unclear if other waivers include the same language and if other universities will abide by similar terms. This may lead to a dilemma for college football players, as they may be required to play football to keep their scholarship (and for many, their education) despite the risks of COVID-19. Will universities honor a player’s scholarship if they choose to sit out due to COVID-19 risks? Will universities honor a player’s scholarship for the following year if they contract COVID-19 and do not fully recover? Would that player have any legal recourse if he signed a waiver or a pledge?
To play college football this year, universities and players must make difficult decisions under unprecedented circumstances and pressures. While this season’s competition is uncertain, how all parties respond to the uncertainty will be the ultimate test for college football this upcoming fall.