The NCAA and COVID Liability: What Happens if Student Athletes Catch COVID-19 as a Result of Their Involvement in Collegiate Athletics?
As students return to campus in fall 2020, universities across the nation have had to balance adequate protections to keep their students safe from the novel coronavirus (COVID-19), continuing income to the university, and minimizing their own liability. This is an especially interesting challenge for student-athletes and the National Collegiate Athletes Association (“NCAA”) because the nature of virtually every NCAA sport includes violating safety protocols for COVID-19. Even in a sport such as golf or tennis where the athlete may be able to distance themselves from other athletes, they still have to train and practice in conditions that risk exposing them to the virus (i.e. weight training, sharing equipment at practice, close quarters for locker rooms). What can the NCAA do and how should liability be handled if a student-athlete contracts the virus specifically through activities related to the preparation and play of their sport?
A helpful start to answering this question is looking to the language in the NCAA Bylaws concerning student-athlete health. Section 16.4.1 of the 2020-2021 NCAA Bylaws states that “an institution shall provide medical care to a student athlete for an athletically related injury incurred during his or her involvement in intercollegiate athletics for the institution.”1 The NCAA generally grants wide discretion to its participating universities to follow the protocol while giving them leeway.2 The NCAA does require that all student athletes have insurance before entering college, but they do not specify that any universities must pay for them.3 Additionally, as delineated in the NCAA Bylaws, the protection from the university will only be extended to two years after the student-athlete graduates.4 This is especially concerning given the early data showing that COVID-19 leaves its victims with weakened cardiovascular and pulmonary systems.5
Student-athletes seeking recourse could potentially bring a claim of negligence against the NCAA. In order to prove negligence four main elements must be met: duty, breach of the duty, causation, and damage.6 In this instance it wouldn’t be difficult to show a duty based on the contractual relationship between the student-athlete and the NCAA. The damage element would also be easy to prove if the student-athlete can show that they have COVID-19. I argue that the breach of duty and the causation elements are connected and would both be difficult to prove.7
If a student-athlete catches coronavirus specifically from their involvement in athletics, it is likely that they will have an uphill legal battle proving that the NCAA should be held responsible for their illness. The biggest hurdle in finding the NCAA liable in cases where student-athletes have contracted COVID-19 as a result of their involvement in their intercollegiate athletics is the issue of proving exactly where the student contracted the virus. This would be necessary for proving the element of causation in their negligence suit because they would have to show that but for their participation in intercollegiate athletics (more specifically, NCAA sanctioned activity) they would not have been exposed to COVID-19.8
This information would also be necessary in proving the breach of the NCAA’s duty to the student-athlete. Generally, courts will use the Hand Formula from Judge Learned Hand to determine if the duty owed to the plaintiff was breached by the defendant.9 Put simply, the court will weigh the cost of the precautions the NCAA could have taken against the possibility of the damage and how great the damage could be.10 Again, due to the lack of information on this disease and how effective certain precautions are, this is a difficult argument for a student-athlete to make. Some could argue that the best precaution would be to halt athletic participation as a whole this year, but the NCAA would have a strong argument that this “precaution” would outweigh almost any amount and possibility of damages because of millions of dollars of revenue the NCAA brings in each year as a result of these athletics.11 This greatly tips the scales of the Hand Formula in favor of the NCAA.
Additionally, the contact tracing information would be important because the language of the NCAA 2020-21 Bylaws state that the injury must be directly related to their involvement in intercollegiate athletics.12 Contact tracing can be helpful, but our collective understanding of the virus and exactly how it spreads and can be contracted is still very limited.
I fear that in a civil suit against the NCAA, injured student-athletes will have a challenging time proving precisely that they contracted the virus as a result of their involvement in collegiate athletics. Other legal scholars have begun this conversation and agree that negligence on the part of the university or the NCAA will be challenging to prove.13 However, if this high bar of proof can be met, I firmly argue that the NCAA should be held liable for the healthcare expenses this student athlete will face as a result of the virus, both in the short term and in the long term.
COVID-19 provides just one more example of complicated health issues that are not easily remedied by the NCAA. Many universities are putting their student-athletes at risk in order to make a profit from their participation in athletics. Of course, student-athletes do not want to miss out on their season because they have trained hard to be prepared to play and having a season cancelled raises issues of transferring and eligibility. However, the risk of student-athletes catching a virus that health experts still know little about greatly outweigh any concerns of eligibility or university profits. There is also a systemic imbalance between the NCAA and universities and their student-athletes that can create an atmosphere in which student-athletes feel as if they cannot say no to their coaches or the administration at large, even if they are technically given the opportunity to opt out. 14
For a more elaborate discussion on the NCAA’s relationship with student-athlete health and their general avoidance of liability, please consult Should the NCAA Have to Pay? Long-Term Injuries in College Athletics, Improper Assumptions of Risk, and Coverage of Medical Expenses After College by Alexandra Jacinto, published in Volume 30 of the Fordham IPLJ.
See Division I Manual (2020-21), NCAA 1, 240 (Aug. 1, 2020), https://web3.ncaa.org/lsdbi/reports/getReport/90008 [https://perma.cc/K49J-2DYU].↩
See Alexandrea Jacinto, Note, Should the NCAA Have to Pay? Long-Term Injuries in College Athletics, Improper Assumptions of Risk, and Coverage of Medical Expenses After College, 30 Fordham Intell. Prop. Media & Ent. L. J. 1383, 1391 (2020).↩
See id. at 1393.↩
See id. at 1391.↩
See Long Term Effects of COVID-19, Ctrs for Disease Control and Prevention (Sept. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html [https://perma.cc/9VV2-P6TG]; see also Dave Harrison, 15% of college athletes showed signs of heart damage after COVID. Should they sit on the sidelines to be safe?, ABC News (Sept. 11, 2020), https://abcnews.go.com/Health/15-college-athletes-showed-signs-heart-damage-covid/story?id=72931050 [https://perma.cc/8FTB-RQLL].↩
See e.g., Zachary Crain, Questions wwirls around who is liable if a UNC athlete gets COVID-19, The Daily Tar Heel (Sept. 4, 2020, 8:52 PM), https://www.dailytarheel.com/article/2020/10/ncaa-athletics-covid-logterm-health-impacts-death-liability [https://perma.cc/DM3B-KT9K].↩
See Restatement (Third) of Torts § 26 (2010).↩
See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).↩
See Steve Berkowitz, NCAA reports revenues of more than $1 billion in 2017, USA Today (Mar. 7, 2018, 11:09 AM), https://www.usatoday.com/story/sports/college/2018/03/07/ncaareports-revenues-more-than-1-billion-2017/402486002/ [https://perma.cc/R6LZ-V75U].↩
See Division I Manual (2020-21), supra note 1 at 241.↩
See Crain, supra note 7 (citing Barbara Osborne, Professor of Sports Administration at UNC).↩
See e.g., Crain, supra note 7 (discussing the opt-out options for student-athletes at UNC); see generally Jacinto, supra note 2.↩