Monday, August 24, 2020

Institutional Considerations for Student-Athlete “Opt-Outs” 

Prepared by John Long, Jackson Lewis PC

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

On August 21, 2020, the NCAA Board of Directors approved and adopted NCAA Board of Governors directives related to fall NCAA participation in light of COVID-19.  Among the directives that were adopted by the Board of Directors is the requirement that universities protect student-athletes who “opt-out” of participation in sports for the fall semester.  In light of the requirement that universities honor the scholarships of opt-out student-athletes, schools are figuring out how to formally present the option to student-athletes, through opt-out forms, as well as other issues related to the student-athlete experience for those student-athletes who will not be with the program this semester.

For student-athletes who proceed with practice and competition this fall, the NCAA Board of Governors’ demand that programs adhere to the association’s recently released “return-to-sport” guidelines.  Pursuant to those guidelines, institutions are to actively test for COVID-19, require masking and other sanitization measures, and engage in steps associated with minimizing the risk of COVID-19 exposure.  This necessarily entails the dedication of institutional resources, but institutional demands don’t stop there.

For implementation of the protocol to be effective, universities will have to take measures to bound student-athletes to conduct expectations.  In doing so, institutions may elect to codify additional student-athlete and personnel conduct expectations, either through policies tied to student-athlete financial aid, or through employment agreements for involved coaching staff and personnel.  Institutions should be mindful that it is impermissible under NCAA rules to terminate a student-athlete’s financial aid agreement due to the student-athlete’s contraction of COVID-19, or for other physical illness.  To it, any additional policies or conduct expectations tied to COVID-19 must be carefully crafted.  Please note that the Board of Directors specified last Friday that institutions shall not require student-athletes to waive their legal rights regarding COVID-19 as a condition of athletics participation, and institutions are required to review their insurance policies and coverage with student-athletes who opt-in.

For student-athletes who choose to opt-out, institutions should clearly define the services, benefits, and access which will be provided and allowed for those student-athletes during the fall term.  Institutions should consider student-athlete access to academic support services, including counseling and tutoring.  Additionally, universities should aim to clearly define opt-out student-athletes’ permissible access to non-CARA related programming and meetings, such as those related to career and personal development.
Of critical concern to universities is whether to provide opt-out student-athletes with access to physical services, such as training and strength and conditioning services.  This decision may be very impactful as it relates to insurance coverage and institutional liability for personal injury.  This may be especially true if institutions permit their opt-out student-athletes to engage in virtual CARA.

Additionally, institutions should address other ancillary privileges in their opt out forms, including opt-out student-athlete access to the Student-Athlete Opportunity Fund and/or Special Assistance Fund, team issued gear and equipment, complimentary admissions (for institutions hosting home contests with spectators), and participation in recruiting activities, among other things.

In addition to privileges, benefits, and services, universities should also clearly define any additional requirements for student-athletes who opt-out of participating in athletics for the fall semester.  Any additional requirements, such as virtual assistance with athletic department operations, should be carefully considered and clearly outlined prior to entering into such an agreement with any student-athlete who opts-out.

Institutions are also encouraged to give thought to scholarship management in light of the ability for student-athletes to opt-out.  For incoming student-athletes who choose to defer their enrollment, autonomy other Division I institutions must decide whether to honor multi-year financial aid agreements, thus pushing the agreement back another academic year, or whether to re-write those agreements to line up with the originally intended term.  Universities should also consider whether they wish to guarantee a fifth year of aid for student-athletes who opt-out of participation or take a leave for the upcoming academic year.  Scholarship management essentially impacts Title IX and NCAA Bylaw 15 requirements, necessitating strategic planning in this area.  The Board of Directors did approve a blanket waiver this past Friday which exempts the athletics aid of a fall sport student-athlete who would have exhausted their eligibility in 2020-21, provided the student-athlete receives a season of competition waiver based on COVID-19, and returns to the same institution.

Finally, and perhaps most importantly, institutions should carefully outline conduct expectations related to COVID-19 for student-athletes who opt out for the semester.  A nightmare scenario is one in which a student-athlete – or student-athletes – who opt out engage in conduct which subjects themselves, and teammates who opt-in, to exposure and the spread of the COVID-19 virus.  Institutions should take extra precaution to emphasize expectations to all student-athletes who pose the risk of jeopardizing the health of its athletic programs and others on campus.

LEAD1 and Jackson Lewis will continue to monitor and update membership regarding any updates on the topic of COVID-19 and Student-Athlete Opt-Outs.  Please feel free to contact John Long of the Jackson Lewis Collegiate Sports Practice Group for advice and counsel related to any questions or concerns on this topic.

Thursday, August 20, 2020

Learning at the Speed of COVID-19

Prepared by Patrick Stubblefield, ComplyU

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

This pandemic has changed the normal operations of everybody, from coaches to student-athletes.  Seemingly every day there’s new information, new recommendations, or new guidance that change the way things are normally done.  This puts a lot of pressure on your staff and student-athletes to not only learn how to operate under new and constantly changing conditions, but also to operate effectively.  For example, your coaches need to continue to recruit effectively in spite of constantly changing rules that disrupt the way they normally recruit.  There’s a lot of change, and this change is happening very rapidly.

In order to thrive through this pandemic, your staff and student-athletes are going to have to adapt quickly, which will require that they learn quickly.

Taking this thought one step further, it’s important that your department gets this moment right.  This pandemic is scary!  We’ve seen coaches voice their concerns.  We’ve seen student-athletes voice their concerns, and we’ve seen parents voice their concerns as well.  If information is not communicated well to all parties involved, then you’re going to get pushback.  So, what can you do?

Consider taking a page out of your main campus’ playbook and implement a Learning Management System (LMS) into your normal operations.  What is an LMS?  Simply put, an LMS is an online platform designed with learning in mind.  It’s a place where organizations or departments can store information, update information, and track information that can be accessed by anybody with a username and password anytime, anywhere.

How will an LMS help your staff and student-athletes learn quickly?

It puts critical information in a centralized location that is not intermingled with other information making it more easily accessible.  Additionally, you can post information as soon as you get it with the ability to commentate on the information’s importance to your department’s operations.  Similarly, your staff and student-athletes will be able to access the information in real time, on their schedule.  They will also be able to reference the information whenever they find themselves in a position where the information is relevant.  In other words, learning becomes agile and is able to occur even in difficult environments.

What might this look like on your campus?

Imagine that all of your coaches were enrolled in a course that is meant to educate them on your institution’s coronavirus policies.  The course could start with a module on what your coronavirus policies are.  The next module could be a link to the guidelines that your senior staff utilized to come to these policy decisions.  Next, you could include any coronavirus related forms for the coaches to complete.  Your coaches would be able to download the form, complete the form, and return it to you all in the same centralized location.  Next, you could include a feedback forum where coaches can provide feedback on your policies as they are going through the policies.  This provides your department with invaluable information that allows you to adjust as needed in real time.  Finally, you can end the course with an assessment to ensure that the coach understands your institution’s policies.

Your LMS should continue to work for you though, even after the coach completes the course!  Because failing to adhere to coronavirus policies could potentially subject your institution to liability, you can pull reports to ensure that all of your coaches have reviewed the materials and answered the assessment questions satisfactorily.  When a coach has a question about a coronavirus policy, they merely have to login to the LMS to get the information, and the modules can be updated and pushed out as new information becomes available.

Choosing an LMS 

While implementing an organizational learning tool is common in other industries, it’s fairly novel within intercollegiate athletics.  So, where do you start?  First, it would be shocking at this point if your campus has not already implemented an LMS to assist in their remote learning efforts.  There is a very good chance that you can tap into this already existing resource on your campus.  However, there is no shortage of LMS options out there for you to choose from if you decide to go your own route.  Therefore, the first decision you will need to make is whether to stay in-house or to outsource your LMS.  The pros and cons of each option are laid out below.

In-House

Pros

• It should not cost your department anything extra to implement.
• Student-athletes will likely already be familiar with the platform because it is what they use in their online classes.
• You can input any information into it at any time.

Cons

• While your campus probably has support for these systems, they may be overwhelmed at the moment, slowing down response times to questions or technical issues.
• You are responsible for the entire course yourself, from course design to content development to administration and everything in-between.
• If you plan to deliver content to someone who does not have a university login (i.e., parents) then you may run into some access difficulties.

Outsource

Pros

• A good LMS partner will have someone available to get you set up quickly.  They will complete the initial back end work such as course design and be able to offer instructional design suggestions.
• Depending on the LMS, they may also have pre-made content that you can easily build into your courses.  Even if they don’t, they may be willing to create the content for you if they believe that it will benefit other clients!
• Once your course is set up, a good LMS partner will remain engaged with your institution to ensure the smooth administration of your course.

Cons

• While it should be cheaper than many of the other software that your department utilizes, it is not going to be free as if you were administering the course in-house.
• It may require some initial training to get staff and student-athletes familiar with the LMS.
• While adding content should still occur quickly, it will not occur as quickly as if you were doing it yourself.

This pandemic has demonstrated why we need to reinvest in the way our departments deliver information. Even looking beyond this pandemic, the intercollegiate athletics landscape is changing drastically, and it’s changing quickly.  Those institutions who are agile and able to adapt to these changes the fastest will find themselves at a competitive advantage.  Investing in a learning platform that gives you that ability will benefit you during this pandemic and in the long run once this pandemic is over.

Monday, August 17, 2020

Episode Three of the LEAD1 Angle Discusses Student-Athlete Advocacy Through the Lens of an Attorney

Prepared by LEAD1 Association

LEAD1 has released its latest episode of the “LEAD1 Angle with Tom McMillen,” which the association announced as a podcast and video interview series this past month. In this episode, LEAD1 CEO & President, Tom McMillen, is joined by Jason Setchen, who created his own law firm, Athlete Defender, geared towards representing student-athletes in NCAA matters.

Setchen’s message is the following – often times, at least in NCAA matters, athletics departments and attorneys representing student-athletes, have a tendency to act in an adversarial manner, which results in unnecessary litigation. Setchen believes that it behooves all parties to, instead, work collaboratively and cooperatively to achieve better results for student-athletes. In this regard, Setchen urges athletics departments to better educate student-athletes about the NCAA enforcement system, where being more forthcoming with potential NCAA rules violations can lead to less severe punishments. Setchen, for example, believes that, in some cases, student-athletes who are not as forthcoming may be punished for an entire season, which may have, instead, only been a few games with more honesty and transparency. For this message to better resonate with student-athletes, Setchen would advise athletics departments to more frequently recruit former student-athletes who have committed NCAA rules violations, to speak to current student-athletes, about their experiences.

Setchen also discussed other timely NCAA legislative issues including potential name, image, and likeness (NIL) enforcement rule changes, as well as possible changes to the one-time transfer exception. According to Setchen, significant education will be needed for student-athletes entering into business relationships with potential agents and third parties, and although the implementation of the one-time transfer exception for all sports may actually hurt his practice (resulting in fewer student-athlete waiver cases), Setchen believes that the proposed changes better align with the new trend in college athletics of increased student-athlete empowerment.

The LEAD1 Angle can be found on the following platforms: 

Listen on Apple Podcasts

Listen on Spotify

Watch Episode 3 on LEAD1 Website (YouTube)

Monday, August 3, 2020

Maintaining Sponsorship Partnerships During COVID-19 and Beyond

Prepared by Justin Sievert, Vela Wood

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

As the fall 2020 semester approaches, COVID-19 has caused many intercollegiate athletics conferences across all three NCAA divisions to modify competition schedules or postpone the return of sports through the end of the calendar year. Even with these changes, there are no assurances that play will resume in the next few months or even as we enter 2021. This reality has caused uncertainty in what potential revenue streams will be available to athletic departments. Institutions have experienced lower than anticipated NCAA and conference distributions, athletic events have been canceled or postponed impacting both gameday revenue and multi-media rights deals, and for the purpose of this article, sponsorship partners may be seeking to cancel, suspend, or reduce payments under existing agreements.

From a sponsor’s perspective, the cancellation of events can dramatically impact the organization’s overall marketing and brand-building strategies as well as targeted initiatives around the launch of a new product or service. For example, if a sponsor’s asset mix includes a sponsored instant replay on the video board with a corresponding public address announcement at a football game, a fan activation site with a free giveaway at men’s and women’s basketball games, and fixed signage at various athletics facilities, these benefits and the value they represent may be lost.

While most sponsorship deals outline the ramifications of event cancellation or postponement, they may fail to cover cancelation of an entire season, extended duration postponements, or events held with limited spectator capacity. As a result, colleges and universities should make ensure they have a solid understanding of how COVID-19 may impact each sponsorship agreement and potential concerns each sponsor may have.

Get Your House in Order

To address potential sponsorship issues, the first order of business is compiling all of your institution’s active sponsorship agreements. Once this task is completed, you should utilize university counsel or outside legal counsel to review each agreement to identify key terms and create a spreadsheet summarizing the applicable language of each term.

At a minimum, the spreadsheet should include the following:

• Force majeure or canceled/altered event clauses and make-good rights;
• Fee and payment breakdown for the term of the agreement as well as any potential payment escalators (i.e., post-season appearances, etc.);
• The agreement’s asset mix (i.e., what benefits are being conferred to sponsor and what is the manner they are provided – gameday, digital media, exclusivity, etc.);
• Expiration date of the agreement and any other termination, opt-out, or non-performance provisions.

Proactive Engagement with Your Partners

Once the spreadsheet is completed, your institution will have a snapshot of each party’s rights as it pertains to partial or non-performance. However, even with that in mind, institutions should be mindful of the long-term benefits of a mutually successful business partnership. Therefore, institutions should consider engaging sponsors to maintain the partnership beyond the current term, appropriately share risk, and create certainty in light of the uncertainty COVID-19 has created. In working with sponsorship partners, institutions should consider building more flexible arrangements to allow variations relating to term extension, payment obligations, and substitutions as it relates to the sponsor’s asset mix. This allows a process to be in place on how potential rights changes will be renegotiated based on various factors. And, if that fails, how refunds or payment obligations will be determined and valued.

SAMPLE LANGUAGE

In the event that one or more regular season University home football, men’s basketball, and women’s basketball games are not played or played without fans for any reason (including, without limitation, an NCAA or Atlantic Coast Conference order, directive, or policy, or a decision by the University at its sole discretion) and such games are not rescheduled, then University and Sponsor shall first consult in good faith to identify substitute sponsorship elements (“Substitute Benefits”) having promotional value not materially less than that of the unavailable Sponsorship Benefits (such value to be determined by good faith negotiation and agreement by the Parties).  In the event that, after good faith negotiations, the parties cannot agree to Substitute Benefits or adequate Substitute Benefits are not available to fully replace the unavailable Sponsorship Benefits, the Sponsorship Fee hereunder shall be refunded or reduced, as applicable, by the value of the unavailable Sponsorship Benefits not provided to Sponsor (such value to be determined by good faith negotiations and agreement by the Parties). In the event that one or more regular season University home football, men’s basketball, and women’s basketball games are played at a limited fan capacity in order to comply with applicable local, state, and federal government regulations and guidance relating to social distancing, NCAA order, directive, or policy, Atlantic Coast Conference order directive, or policy, or as a result of other efforts to protect public health, then, unless University and Sponsor otherwise agree in writing, the parties will work together in good faith to equitably adjust the Sponsorship Benefits provided to Sponsor.

This article and the sample language provided is for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction. Anyone using this article should seek the advice of legal counsel to develop a contract that meets their college or university’s specific needs. 

Thursday, July 30, 2020

Episode Two of The LEAD1 Angle: University of Florida AD Scott Stricklin Discusses Testing Positive for COVID-19

Prepared by LEAD1 Association

On Wednesday, University of Florida Athletic Director, Scott Stricklin, joined LEAD1 Association (“LEAD1”) CEO & President Tom McMillen as a guest for LEAD1’s second episode of the “LEAD1 Angle,” released as a podcast and video interview series earlier this week. There is perhaps no better person for LEAD1 members to hear from at this time given that Stricklin recently announced that he tested positive for COVID-19 last month.

Stricklin, who indicated that he now feels “back to normal,” obviously lives in Florida, a recent hotspot for COVID-19. According to Stricklin, symptoms started with a runny nose, headache, congestion, and chills (describing that it felt like the “flu”). Those symptoms later turned into “labored breathing” comparing it to someone visiting “the Colorado mountains for the first time” and struggling to breath due to the high altitude (because of less oxygen available).

So what is Stricklin’s message to his fellow LEAD1 AD counterparts? “Take this seriously.” And “run out every ground ball.” In other words, simple requirements such as wearing a mask, washing hands, and social distancing can make a world of a difference.

Stricklin also indicated that 33 Florida student-athletes have tested positive since April, noting, however, that there are currently zero student-athletes that have recently tested positive. Stricklin, while admitting that having had the disease accords him more credibility when speaking about the severity of the pandemic, attributes the drop in positive cases to the various protocols that his university has implemented. In addition to the basic aforementioned mitigation strategies (i.e., handwashing regularly), Stricklin explained that his university has executed a strong contact tracing program, changed meeting rooms structures to outdoors, and moved weight room equipment into a facility with better air ventilation.

Generally, Stricklin supports the return of college sports to provide a “competitive opportunity” for student-athletes, but on the condition that it is safe to do so. As the college sports industry has seen this week with the Miami Marlins (Major League Baseball (MLB)), however, playing sports and keeping safe is a significant challenge. As for now, Stricklin’s overall message for college sports is to “stay positive” as games with fans in the stands will return “at some point in the future.” And with baseball back (for now), “running out every ground ball” will help college sports return to that point.

The LEAD1 Angle can be found on the following platforms: 

Listen on Apple Podcasts

Listen on Spotify

Watch Episode 2 on LEAD1 Website (YouTube)

Wednesday, July 29, 2020

LEAD1 Association Launches New Podcast and Video Series

Prepared by LEAD1 Association

On Tuesday, the LEAD1 Association (“LEAD1”) debuted a new podcast and video interview series, called “The LEAD1 Angle,” hosted by LEAD1 CEO & President, Tom McMillen, discussing important issues in college sports with key players. The first episode, released on Tuesday, features Church Hittle + Antrim’s Collegiate Sports Consulting, Managing Principal, Kelleigh Irwin Fagan, a former student-athlete, who discussed Title IX implications with respect to some of the hot-button issues in college sports, scenarios for student-athletes returning to campus, and other compliance issues for athletics directors to consider.

With regard to Title IX, Fagan mentioned that athletics departments that cut sports could face significant compliance consequences as under Title IX’s “proportionality” requirement, the statute requires athletics departments to treat male and female student-athletes “equitably” (not necessarily “equally”). As it relates to the intersection between Title IX and NIL, Fagan confirmed that even if institutions do not directly administer student-athlete NIL opportunities, institutions merely educating student-athletes on NIL could have significant Title IX application; as the NCAA has not finalized its legislative proposals and the Office of Civil Rights (OCR), which administers Title IX, has not yet released specific guidance on this narrow issue, such ramifications, however, may now be more conjecture. Fagan noted, however, that parallels may be drawn from Title IX’s “laundry list” applied to athletics, which requires male and female student-athletes to receive equitable treatment. Fagan, for example, explained how the “publicity and promotions” prong under the laundry list could be used as a parallel for OCR once the NCAA passes legislation.

Fagan also questioned the enforceability of COVID-19 eligibility waivers (which some institutions have reportedly instituted), describing them as “contracts of adhesion,” where one party has substantially more power than the other, which courts may be reluctant to enforce. Alternatively, Fagan explained that institutions have more likely offered “responsibility pledges,” such as requiring student-athletes to, in good faith, perform basic actions like frequently washing their hands and quarantining when reasonable.

Finally, Fagan described some of the risks involved for athletics directors with respect to the NCAA’s recently enacted attestation of compliance legislation, which requires athletics directors to certify compliance even with third parities, as well as possible enforcement mechanisms with respect to a potential NIL model.

The LEAD1 Angle can be found on the following platforms: 

Listen on Apple Podcasts

Listen on Spotify

Watch Episode 1 on LEAD1 Website (YouTube)

Wednesday, July 22, 2020

LEAD1 Association Holds Forum for COVID-19 Testing as the Clock Ticks for Fall Sports

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Tuesday, LEAD1 Association (“LEAD1”) hosted a webinar to help its member institutions better prepare for all aspects of testing for COVID-19. No vaccine means that testing is the most important risk-mitigation strategy that colleges and universities can employ to ensure the health and safety of their student-athletes for returning to play. In addition, because higher education and college athletics programs are not the only entities seeking frequent testing capabilities, it is important for institutions to secure their testing capabilities now to have a chance at playing sports in the fall. The panel, sponsored by Campus Health Project (CHP), recently founded to help colleges and universities secure COVID-19 testing capacity and logistical support, featured Chuck Brady (CEO at CHP), Joyce Gresko (Partner at Alston & Bird; who is the Legal Counsel at the American Clinical Laboratory Association (ACLA); and also appeared on LEAD1’s first testing webinar in June), and Dr. Thomas Huard (Chief Clinical Laboratory Advisor at CHP).

Brady opened the panel by underscoring some of the challenges that college sports now faces due to the discrepancies between the NCAA’s testing guidance (released last week) and the general turnaround times (for results) by most testing labs. The NCAA’s guidance states, for example, that testing results for high-risk contact sports should be obtained within 72 hours of completion. At the same time, according to Brady, the average turnaround time (for non-priority testing, which sports is likely to be considered) is seven days. The critical point is that demand for testing currently outweighs supply. Brady made another often less talked about comment worth highlighting: while there are certainly risks involved with playing sports, the more likely way that student-athletes could become infected is away from the playing field (where there is less supervision). In other words, it is not necessarily the risk of sport that becomes the issue, but rather, student-athletes’ activities when they are away from it. In this vein, athletics departments should appoint one person dedicated to all things COVID testing. In addition, athletics departments should appoint a quality assurance individual to ensure all testing is conducted properly.

As she did so thoroughly on LEAD1’s first testing webinar, Gresko then outlined the various things athletics departments should consider when contracting with a testing lab such as ensuring the lab is CLIA certified, subject to Emergency Use Authorization (EUA) from the Food and Drug Administration (FDA), and complying with HIPPA regulations. Gresko also discussed all things from a federal funding standpoint, for example, there may be federal aid to pay for return-to-school (and work) and tax credits against payroll taxes for employers to test employees.

Finally, Dr. Huard provided an update on the various testing collection devices such as nasopharyngeal (NP), saliva and nasal swab, mentioning that NP, while the least convenient is the most accurate. Perhaps the biggest takeaway for college sports is Dr. Huard’s opinion on specimen pooling, a laboratory technique to save money and use fewer resources (mostly for asymptomatic people) where specimen can be tested in batches – while the pooling technique can reduce costs, Dr. Huard is apprehensive regarding pooling and believes it can lead to false negatives in COVID tests and more delayed results. Dr. Huard also outlined various tips for working with on-campus and off-campus labs such as choosing labs that can provide a 24-hour turnaround time consistently, handle thousands of daily tests, and immediately report (as well as understand where the institution stands on prioritization such as testing athletes versus non-athletes).

Brady summed it up best for college sports — testing for COVID-19 is the new “pre-game” routine that colleges and universities will need to play sports in the fall. Lab testing is not a “just in time” environment and requires advanced commitments for timely results.

Find out more about Campus Health Project by exploring their complimentary consultation offer HERE.

Webinar Resources (Recording, Slides, etc.) HERE

Tuesday, July 21, 2020

Management of Collegiate Sports Brands for Face Masks

Prepared by Joel Feldman, GT Law

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

Colleges and universities typically have robust trademark portfolios related to their intercollegiate athletics programs.  There are two primary reasons for this.  First, a trademark registration makes enforcement easier, and college sports brands are particularly prone to unauthorized use (in many cases without nefarious intent).  Second, a trademark registration makes licensing tidier, and because college sports programs typically focus on “the product on the field,” outsourcing the manufacturing and distribution of branded souvenir goods to third parties that specialize in such goods is an efficient model that still generates substantial income for the school.

A school’s trademark portfolio is typically composed of federal trademark registrations (covering the school name and nicknames, team logos, color combinations, mascots, and team slogans).  Two of the key components in each trademark registration are the mark (for example, the school name or nickname, team logo, a distinctive color combination, a mascot name or image, and/or a team slogan) and the goods or services (for example, shirts or towels).  The trademark application and resulting registration must pair a particular mark with a list of goods and services.  And in most cases, the trademark owner must actually use the particular mark with each good or service before registration.

The U.S. Trademark Office, like most trademark office in the world, uses the “Nice [like the French city] Classification” system to organize goods and services into classes.  There are currently 34 classes of goods and 11 classes of services.  The organization of goods and services into these classes helps the Office to examine new applications to determine if there are prior conflicting rights and also dictates the official fees a trademark applicant must pay the Office (there is a per-class fee).

The lion’s share of a college’s sports-related trademark portfolio typically falls into a handful of categories: Class 25 (for clothing); Class 14 (for jewelry); Class 16 (for paper goods and printed matter like stickers); Class 21 (for beverageware); Class 24 (for towels); Class 28 (for toys and sporting goods); and Class 41 (for entertainment and education services).  The COVID-19 pandemic has created a strong demand for a new type of souvenir good – college-branded protective face masks – and many schools are considering trademark protection for face masks and deciding whether to expand their trademark portfolio to include face masks.

The classification of face masks has been a particular focus of the U.S. Trademark Office in the past month.  So as colleges consider adding face masks to their trademark portfolio, it is important to understand how the Office classifies these face masks, and the appropriate brand management strategy for adding face masks.

On June 11^th, the U.S. Trademark Office deleted several items from its list of acceptable ways to describe and classify face masks.  The deleted descriptions, which the Office considered indefinite, were protection masks, protecting masks, paper face masks, knit face masks, costumery face masks, respiratory masks for non-medical purposes, and protective face masks not for medical purposes.  In place of these descriptions, the Office added the following descriptions:

• facial sheet masks for cosmetic use (in Class 3, which covers cosmetics);
• protective face masks for the prevention of accident or injury (in Class 9, which covers scientific apparatuses);
• protective industrial respiratory masks (in Class 9);
• personal protective equipment (PPE), namely, masks for use by medical personnel (in Class 10, which covers medical apparatuses);
• disposable sanitary masks for protection against viral infection (in Class 10);
• reusable sanitary masks for protection against viral infection (in Class 10);
• sanitary masks made of cloth for protection against viral infection (in Class 10);
• knit face masks being headwear (in Class 25, which covers clothing); and
• face masks being playthings (in Class 28, which covers toys).

By adding these descriptions, the Office significantly helped guide brand owners into the correct way to describe and classify their face masks – sanitary masks for protection against viral infection.

For many schools, Class 10 will be a brand-new class.  Accordingly, schools will want to discuss with their trademark attorneys both clearance and registration of their key brands in this class.  This is particularly important because the medical device landscape has not likely been vetted vis-a-vis the school’s brands in the past.  At the same time, because of the unique nature and purpose of face masks, schools will want to carefully vet their licensees and revisit their standard requirements from licensees with respect to representations, warranties, and indemnification to ensure that they are appropriately tailored.

The safety device of 2020 often serves as a fashion statement.  And college sports fans will certainly look to proudly display their fandom across their face.  Many schools will capitalize on this opportunity, and should carefully consider the intellectual property steps to do so effectively.

Thursday, July 16, 2020

LEAD1 Association Virtual Forum Convenes Industry Experts on Student-Athlete Name, Image and Likeness Compensation

Prepared by LEAD1 Association

Webinar Recording HERE

On Thursday, with more than 800 registrants, LEAD1 Association (“LEAD1”) hosted a webinar discussing some of the latest issues with respect to student-athlete name, image and likeness (NIL) compensation. With more than 30 states considering passing NIL legislation, several introduced bills from Congress and the NCAA developing legislation solutions, student-athlete NIL is a sea change moment for college sports. The webinar, separated into two panels, all moderated by LEAD1 CEO and President, Tom McMillen, featured some of the best and brightest on NIL. The first panel included Lyle Adams (Founder & CEO at Spry), Ishveen Anand (CEO at OpenSponsorship), Luke Fedlam (President at Anomaly Sports Group) and Jim Cavale (Founder & CEO at INFCR). The second panel included Blake Lawrence (Co-Founder & CEO at Opendorse, who also sponsored the webinar), Courtney Altemus (CEO at TeamAltemus) and AJ Maestas (Founder & CEO at Navigate Research). The webinar was one of LEAD1’s most novel because each panelist offered a different and unique perspective on the future NIL landscape.

Panel One opened the webinar with a discussion about the possibility of a third party administrator (TPA) managing a potential NIL system. Adams highlighted the possibility of a centralized technological disclosure process where student-athletes could submit NIL deals and such agreements could be vetted through the TPA. Anand underscored that an NIL system may need to provide flexibility depending upon the type of student-athlete, for example, the NIL solution for a star quarterback may be different from a field hockey player. Cavale explained some of the challenges involved with getting all stakeholders to use the same technological platform and his focus on helping student-athletes grow their brands through such technology. Similar to Anand’s comments, Fedlam emphasized that one size may not fit all for NIL deals and that education will be needed to ensure student-athletes make informed NIL decisions.

Next, the panel expanded upon some of the guardrails that may be needed to flag potential abuses where student-athletes receive NIL payments, which, in reality, are recruiting and transfer inducements. Here, Adams again mentioned the possibility of vetting boosters through a possible disclosure database and Anand discussed the possibility of protecting certain categories of deals (such as how the professional sports leagues exclude CBD as an endorsement category). Cavale made an interesting point that the potential technological system will likely evolve and improve over time as more data becomes available. Fedlam agreed with Cavale’s statement, but also argued that without enough education, student-athletes should enter into flexible contracts (such as shorter-term deals) such as not to bind themselves into potential long-term unfavorable agreements.

The panel also discussed pre-enrollment issues, such as whether NIL legislation applicable to enrolled student-athletes should apply to individuals prior to collegiate enrollment, potential institutional involvement and some of the guardrails that may be included in a federal NIL bill such as an ongoing evaluation function, group licensing and certain educational requirements.

Panel Two followed with another discussion addressing many of the issues that were offered in the first panel and also raised several other worthy topics. Lawrence, a former student-athlete, made a unique comment that all student-athletes should be able to monetize their NILs. This is fascinating given that many have opined that only the top student-athletes, such as the star quarterback or point guard, will be able to enter into NIL deals. Lawrence also engaged the audience into an analysis of how the recruiting landscape could change with NIL (such as NIL becoming another major recruiting tool among the many resources that institutions already offer). In addition, Lawrence examined other ancillary issues with respect to institutional involvement such as use of institutional marks and possible joint deals between student-athletes and institutions.

Expanding upon Fedlam’s earlier insight, Altemus highlighted the need for potential vetting of outside third parties and agents and the importance of ensuring that student-athletes receive the requisite education and guidance before signing NIL deals. In this vein, Altemus stated that the college sports industry should be mindful that student-athletes will need to manage their time wisely when potentially adding NIL activities to their already busy schedules. Finally, Maestas urged for college sports to adopt a group licensing model that would allow companies, such as EA Sports, to develop video games featuring NCAA student-athletes. Maestas noted that such video games are, in some ways, a “gateway” for becoming a college sports fan and that student-athletes “love seeing themselves in the video games.” In addition, Maestas argued that student-athletes should be able to collectively bargain like all other athletes.

All in all, between the two panels, almost every major NIL issue was discussed and the college sports industry should not be surprised to see this group collaborating on this issue for years to come.

Webinar Recording HERE

Thursday, July 16, 2020

College Athletics’ Most Challenging Opponent: COVID-19 — What You Need to Know…and What You Can Do About It

Prepared by Chuck Brady, CEO and Higher Education Advisor, Campus Health Project

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

For more than two decades, I’ve been serving the higher-education industry, helping hundreds of schools, from the smallest college to the largest university, explore better ways of doing things.

In that time, I have never seen a challenge as formidable as what COVID-19 poses to collegiate athletics.

There are so many questions. So much risk. And yet, there is a way to overcome this challenge, or at least mitigate the damage it can cause to collegiate athletics, and the business it has become.

Here’s what you need to know.

There are two primary types of tests – ones that test for active COVID-19 infections and ones that test for antibodies determining whether the person previously had COVID-19. The former that tests for active COVID-19 infections is the one that should be of interest to collegiate athletics initially.

Why? Because antibodies typically do not show up to any large degree until the person is well into the infection. In other words, you can be asymptomatic and have an infection, but the antibodies haven’t shown up yet, putting the entire community of student athletes at risk. Furthermore, a growing body of research suggests that the antibodies are fleeting. So, if student athletes had antibodies in July, they may not have them in October, and thus are at risk for contracting COVID-19 again.

The main test (and gold standard) for an active infection is called a PCR test. And the best, most reliable type of specimen collection, is called the nasopharyngeal swab test. “Due to its reliability, the nasopharyngeal swab is considered the gold-standard procedure for collecting cells and secretions from the back of the throat for COVID-19 diagnostic testing,” according to some of the latest research. Stay tuned for more data coming out on saliva and anterior nares collection kits and the options they may offer in making the process faster. We have a couple of pilots with promising results. For now though, NP swabs are still your best bet.

So, we know what the most appropriate test is. Who can deliver the test results?

Typically, college athletic departments have turned to one of two resources to secure test results – a campus health entity, such as a medical school or student health center, or a large outside lab with whom the campus had an existing relationship.

The Flawed Logic of Relying on a Campus Resource or a Large Commercial Lab
While each of these options on the surface appears attractive, both have major flaws. Bigger schools may be able to turn to an on-campus medical resource. And while such entities may be able to deliver results in a matter of days in late July and early August, late August may be a different story. That’s when the school’s faculty and staff as well as regular students return to campus. The slightest outbreak of COVID-19, or even just the common cold, could turn a promise of getting test results back in days to a week or two. And there is nothing to suggest that an asymptomatic student athlete should move to the front of the line past a symptomatic employee or student. If you are going to work with an on-campus resource, make sure you find out upfront where collegiate athletics falls in terms of priority, and get it in writing.

Similarly, large commercial labs also face competing demands. They are already servicing regular customers – maybe the health department in the public sector and nursing homes in the private sector. These clients  may have used that lab for years or decades, long before collegiate athletics came along. Just as importantly, after COVID-19 fades, these customers will still be using the labs. Combine that incentive with the risk of a public relations nightmare if a student athlete gets a result back in two days, while a mother of three waits a week and it is easy to see why the large commercial labs are a shaky option. Knowing this, it will be a challenge to get a commercial lab to commit to a promise of delivery in 24 to 48 hours.

Looking into the Crystal Ball of Winter 2020-2021 
There’s a lot of discussion in collegiate athletics right now about forgoing competition in the fall and having the fall programs compete in the spring, hoping a vaccine will be available. While COVID-19 treatments will almost certainly have improved by the winter, the chances that an effective vaccine will (1) be available and (2) eliminate all risk of infection is speculative at best.

Testing will most likely be necessary well into in November and December as student athletes in the basketball, football, and other programs prepare for the spring season.

Overcoming the Challenges
So how do you overcome these challenges or at least mitigate the damage? The key is having reliable access to lab capacity for testing players and getting results in under 48 hours every time. Campus Health Project (CHP) was launched to do just that.

With CHP, a college or university gets a reliable, turnkey testing solution with a streamlined process – from customizing your testing plan, to reserving testing capacity, receiving collection kits, sending specimens, and getting quick test results within 24 to 48 hours via dashboards, real-time alerts, and custom reporting.

From the smallest college to the largest university, schools that prepare best for the coming fall challenge will be able to limit the damage caused by COVID-19, which has quickly become collegiate athletics most challenging opponent.

Prepare your game plan now!

Tuesday, July 14, 2020

Maintaining Trademark Portfolios During the Collegiate Sports Dormancy

Prepared by Joel Feldman, GT Law

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

Athletic departments (or their corresponding schools) typically own robust trademark portfolios related to the operation and promotion of their activities. According to public records, some schools own more than 100 live trademark applications/registrations. These portfolios are typically comprised of different trademarks (school name, logos, color combinations, mascots, and taglines) subdivided into the categories of goods and services for which they are used. The athletic department then commercializes its trademarks directly and through licensees.

In most countries, trademarks are considered purely property rights, and, while they can be challenged after a long period of non-use, they can also theoretically last forever if renewal payments are made to the applicable trademark office. The U.S. is unique because although trademark rights can last perpetually, actual use of the exact trademark on the exact goods or services is required both to initially obtain the trademark registration and then to maintain the trademark registration at various milestones (beginning at the sixth anniversary of registration).

Although the pandemic does not prevent schools from continuing to sell merchandise and promote intercollegiate athletics through video content, social media content, newsletters, etc., the possibility exists that some, if not all, athletic departments will forgo live intercollegiate athletic events in the fall of 2020 (and potentially longer). The suspension of live events presents some challenges vis-a-vis the trademark use requirement and raises some important questions for brand managers. First, is it possible that schools could be deemed to have abandoned their trademark rights if there are no live intercollegiate athletic events in the fall? Second, will schools be able to file maintenance paperwork for their trademark registrations if the applicable deadline falls during the suspension of live intercollegiate athletic events? And third, could schools potentially forfeit pending trademark rights if they are unable to perfect those rights through use? Fortunately, all three topics have favorable answers for schools and other brand owners.

Under trademark law, abandonment is non-use of a trademark paired with an intent not to resume use of the trademark. When it comes to live collegiate athletic events (for entertainment purposes, at least), there is always an offseason. The offseason does not result in abandonment because the school intends to resume using the trademark the next season. So, aside from a school’s announcement that it will be “retiring” a brand (for example due to social change), the assumption is that all schools intend to resume using their trademarks for live collegiate athletic events whenever public health allows resumption and, accordingly, there is no risk of abandonment. As a technical matter, an intent not to resume use can be legally presumed after three years of non-use. Even so, in the highly unlikely scenario that live intercollegiate athletic events are shut down for more than three years, there are safeguards in place to help ensure that schools can maintain their trademark rights.

Things get a bit more complicated when it comes to the maintenance of trademark registrations. A small subset of registrations will likely, due to timing, require maintenance (colloquially, renewal) before the end of 2020. When maintenance paperwork is filed, it requires the trademark owner to provide a snapshot of information on the date of signing. The trademark owner must declare either that the trademark is in use or that the trademark owner’s nonuse is excusable under the law. For the purposes of maintaining trademark registrations, a school should be able to maintain its trademark registrations under either use (in the ordinary course of trade, which is currently an extended offseason) or excusable nonuse. But it is a nuanced, fact-specific question as to which provision applies, and schools should discuss this distinction with their trademark counsel.

The most complex are trademark applications that have been “allowed” by the U.S. Trademark Office, but have not yet matured into registrations because the colleges have not implemented their plans to launch the new brand. Under the trademark rules, applicants are generally allowed up to three years (in six-month intervals, each for a fee) from the date the U.S. Trademark Office issues its official “allowance” of the trademark application to begin use and submit proof of use to the U.S. Trademark Office. If the proof of use is accepted by an examiner, a registration will be issued. Some universities had previously planned brand launches in the fall of 2020 that, for the time being, may be put on hold. For those that have corresponding applications that can be extended into 2021 and beyond, there should be no concern. But for those that have so-called drop-dead dates in 2020, there is potential cause for concern. Presently, the U.S. Trademark Office has no ability (because of the federal laws that govern it) to extend the use deadline beyond three years. Accordingly, given the indefiniteness of when live intercollegiate athletic events will resume, schools would be well advised to consult with their trademark lawyers to determine any final use deadlines falling in 2020 (or early 2021) and determine whether there is the possibility of filing corresponding “evergreen” applications for insurance purposes.

Thursday, July 9, 2020

COVID-19 Tracking: Qualtrics

Prepared by Mick Swenson, Qualtrics

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

By implementing a single solution for symptom tracking across the FBS, we can reduce costs, standardize measurement, and better enable our programs to resume normal operations.

The Challenge

Every athletic department is looking for a way to track student-athlete symptoms day-in and day out.  In order to ensure the health and safety of athletes, the CDC recommends daily symptom tracking every day for 30 days upon returning to campus, and periodically thereafter.

We don’t know how long COVID is going to last. Custom technology solutions may be an expensive short-term investment, but assigning full-time personnel to daily interviews or manual data collection could be a long-term resource drain as well. We need something that will allow our respective organizations to focus on core functions while also meeting the recommended requirements around symptom surveillance consistently throughout at least the 2020-2021 season.

“It is critical for our university to put the right public health measures in place to ensure the safe return of our … students… By helping us implement a self-certified symptom checking solution…Qualtrics is playing an important role in achieving this milestone,”

– Erin Kobitz, VP Research, Univ. of Miami

Your Solution

Qualtrics has proposed a cooperative approach to student athlete symptom monitoring. These are the highlighted points for consideration:

1. Accountability & Collaboration – If LEAD1 school establish a consistent approach to symptom monitoring, each school will be better informed of which policies and practices are effective for protecting our athletes and which ones are not while safeguarding each institution’s data.
2. Almost every school within LEAD1 Association already has a legal agreement in place with Qualtrics, so IT departments and administrators would be minimally involved in implementation
3. A cooperative approach to symptom surveillance (following CDC best practices) can significantly reduce costs since Qualtrics would only need to implement once based on needs consistent across athletic programs, then copy and paste a significant amount of the work for each program.
4. Qualtrics’ approach (which has already been deployed at Miami) is a proven approach to effectively automating symptom surveillance, allowing your staff to focus on regular duties.

The CDC recommends 2 weeks’ worth of symptom data prior to the return of students which is a very short timeline.  Many schools are already bringing athletes back but have not established consistent policies or procedures for monitoring symptoms. Here is a clear path forward:

Implementation Plan

Below is a hypothetical implementation plan. A clear road and timeline of implementation will be critical to ensure the safety of athletes across competing programs as inter-collegiate competition begins:

• Discovery & Specification (1-3 Days)
  • Overall Design To Match LEAD1/FBS requirements
• Design & Programming (4-6 Days)
  • Survey Methodology & Design
  • Survey Review & Programming
  • Translations
• Distribution (7-14 Days)
  • Soft Launch
  • Full Launch
  • Monitoring & automated actions (we anticipate some custom work may be required at each school depending on state/county requirements)
• Data Processing (4-5 Days)
  • Individual dashboard rollouts
  • Report design customization (by customer or Qualtrics)
• Analysis & Reporting (4-5 Days)
  • Potential cross-program collaborative configuration
  • Topline Reporting
  • Executive Summary
  • Full Reporting

For questions/concerns about this program, please contact Mike Swenson (micks@Qualtrics.com).

Wednesday, July 8, 2020

Collegiate Athletics COVID-19 Communications Challenges

Prepared by Patrick Walsh, Willard Schulmeister and Jonathan Byrd, EagleHawk One Inc.

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

The COVID-19 pandemic has had a significant impact on the world and has changed the way society views and approaches health and safety, including facility cleanliness and sanitization. These changes will continue to create new challenges and drive new protocols for athletics programs. When it comes to traditional disinfection methods, such as wiping surfaces with towelettes or using backpack sprayers, will be unsuitable for large-scale disinfection of fan seating areas.  These methods are too labor intensive, make it harder to achieve turnaround times, and create additional liability exposure.  Fortunately, drone-enabled disinfectant spraying technology is an innovative new method that can help facilities disinfect the seating areas of stadiums and arenas, safely, efficiently, and affordably.

Why disinfect the seating areas?
Deciding whether to disinfect the seating area in a venue has become an important point of discussion as facilities navigate new expectations of leagues, schools, players, stakeholders, and fans. The type of venue, the seating layout, the frequency of events, and whether it is outdoors or indoors are key factors in these discussions. The consensus seems to be that disinfection on a regular basis and after every event will be important to demonstrate that a facility is doing everything possible to ensure safety and cleanliness.

With the overwhelming media attention given to new virus cases and introduction of contact tracing, it is reasonable to expect that any new COVID-19 occurrences which trace back to an event will likely result in that venue suffering attendance disruption and diminished revenues. Taking appropriate precautions and proactively disinfecting after every event is the best course of action.

The importance of PR and making fans feel safe
Marketing and public relations initiatives focused on communicating to fans and patrons that a venue is committed to doing everything possible to make that facility safe, clean, and disinfected is going to be a key enabler to getting fans and stakeholders back into the stands. Ticket sales drive revenue and fund programs and it only takes a small increase in fan attendance to pay for the cost of drone-enabled disinfectant spraying services.

Traditional vs Drone-enabled disinfection
Most facilities and venues currently use a team of laborers after each event to clean up debris, garbage, and some cases pressure wash the facility. This labor-intensive approach has been considered for disinfection as well, but there are many reasons this approach is impractical. There are safety concerns, liability risks, operational challenges, and cost barriers to performing manual spraying of disinfectant.  Drone-enabled disinfectant spraying overcomes these challenges because it is safe, efficient, effective, affordable, and reduces liability risks.   Drone-technology allows large 100K seat stadiums to be disinfected in 6-8 hours and 10K-15K seat arenas in only 1-2 hours.

Choosing the right drone technology
Most spraying drones on the market were built for agricultural purposes.  These platforms work great for their intended purposes but are very limited when used for applying disinfectant.  The key factor in ensuring the proper kill time with any EPA approved disinfection product is meeting the wet contact time requirement.  To meet this requirement, enough product must be applied so that the surface remains wet for the duration of the time requirement and for most products that requirement is 10 minutes.  This requirement can be challenging to meet, especially outdoors where evaporations rates are higher.  Due to FAA weight restrictions, agricultural drones can only carry 2.5 gallons of liquid in an onboard tank and their onboard pump systems can only flow at a max rate of about 1 gallon per minute.  Testing has shown that 2-3 gallons per minute is needed to adequately meet wet-requirements outdoors and the math clearly shows that agriculture drones can’t carry enough disinfectant or spray enough volume to meet these requirements. Tethered-hose drone systems utilize a pump station and a hose to deliver liquid to the spray drone.  This method can be tailored to meet the needs of any venue so that wet contact time can be properly met.  In many cases, a secondary drone is used to help manage the tether in order to keep it elevated above the seats and allow the system to reach the seating in upper decks with ease.

Indoor vs Outdoor flights
Modern commercial drone technology utilizes GPS to help stabilize the drone, ensuring safe flight operations.  GPS allows the drone to hold it position and counteract wind or momentum forces.  When operating a drone indoors, GPS is signals are blocked and the drone’s flight computer is no longer aided by GPS data.  This makes flying indoors much more challenging and dangerous, requiring a highly skilled pilot.  However, other sensor technology, such as LIDAR or vision-based sensors, exists to make flying indoors safe.  LIDAR-based technology will also help make indoor flight automation a reality in the near future.  It is important that such sensor technologies are used to make indoor flights safe, but unfortunately agricultural drones that were developed for use outdoors lack such features.

Sprayer technology
Understanding what sprayer type should be used for various applications is important for achieving proper coverage when utilizing drone-enabled spraying technology.  There are four primary spray head types: traditional orifice-based nozzles, atomizing spray heads, electrostatic spray heads, and foggers.  For outdoors use, traditional orifice-based nozzles work the best.  Nozzles that produce larger droplets work better to get directly down to the target surface with less impacts from wind.  All other sprayer types are not suitable for outdoors and as the fine particle droplets drift easily and disperse in the wind.  For indoors, atomizing spray or electrostatic spray heads can be effective and reduce the amount of disinfectant product need to do the job.  However, electrostatic does have its limitations as it will stick to the closest surface and will not easily reach areas that are more confined.  Foggers are net effective from a drone platform due to the propwash and they are better suited for smaller spaces.

Choosing the right product
For large outdoor venues, concentrated disinfectant products that can be diluted are the most economical.  In some large venues, it may require more than 1,000 gallons to properly cover the seating areas and dilutable products will be much more economical.  For any product, it is important to understand the active ingredients, the effectiveness of the kill rate, the PPE requirements, residual issues, health impacts, and wet contact time requirements. EPA registered disinfectant products must be applied in a manner consistent with their label.  When utilizing drone-enabled disinfectant spray services, the chemical being used to disinfect facilities or surfaces must be a product that can be applied via spray and must be suitable for surfaces where it is being applied. In some states, there are additional requirements imposed by state and local agencies. It is imperative that you work with companies who are up to date, educated, and following all EPA regulations and protocols to ensure that players, fans, and stakeholders’ safety and health are the number one priority.
If you decide to utilize and invest in drone-enabled disinfectant spraying solutions, be sure to work with experts who are familiar with navigating the regulatory framework of the FAA regulations regarding drone operations as indoor and outdoor venues have different regulatory requirements.

Additional Resources

• Drone Spraying Demonstration Video

Monday, July 6, 2020

Collegiate Athletics COVID-19 Communications Challenges

Prepared by Carrie Cecil and JJ Hermes, ANACHEL

Important Note: LEAD1 does not take any responsibility for the information provided in this report as the content is created solely by the named contributing authors.

During a crisis, people want to know what happened, why it happened and that it’s not going to happen again. This year COVID-19 went from an isolated occurrence of a respiratory illness caused by a novel coronavirus to a global pandemic in less than four months. We didn’t — and in some ways still don’t — know what hit us. Our basic understanding of the what and why means we’re nowhere near the how we are going to fix this. Everyone, everything, everywhere has been profoundly affected.

Schools, businesses, stores: closed. Graduations, weddings, sporting events: cancelled. Daily activities and interactions moved online, indoors, away from family and friends. Safely distanced six feet from our nearest neighbors, we worried, wondered, and waited.

But life is a contact sport and we’re all coming back out to play.

Leaders in higher learning and collegiate sports are cautiously implementing new health and safety practices as communities prepare – in phases – to welcome hundreds of thousands of constituents back to campus. However, establishing and maintaining a safe environment for competition and education is only one half of the equation: how and when we communicate these changes will have as much of an impact as the policies will. When an Athletic Director (AD) speaks, all aspects of the institution – brand equity, enrollment and revenue – and its employees – recruiting, retention, tenure and personal legacies – are vulnerable to a shift in public perception.

For crisis communications experts, the challenge is that the Pandemic Age has forced us to acknowledge what is known and what is unknown exist on a continuum. A public health crisis isn’t an isolated tragedy: it’s an on-going, ever-evolving series of events.  Routine revisions to health and safety precautions are up against a multitude of personal and professional approaches to disease mitigation and beliefs about the pandemic. A viral pandemic demands new communications strategies, tactics, workflows and personnel.

The Center for Disease Control (CDC) has published guidelines to help us manage our workplaces and workflow in the Pandemic Age. These guidelines are organized in three categories – plan, prepare and respond. The latter, responding and communicating, requires the Holy Trinity of Messaging: consistency, clarity and authenticity.

By now, most universities have created a ‘Here’s What We Are Doing!’ plan. The university president somberly references it during media interviews. Health and safety task-force leaders earnestly discuss it during press briefings. It’s been published on the website alongside a scientifically accurate stock image illustration of a coronavirus. It’s a start.

University spokespersons, especially ADs and coaches, need a communications plan with a messaging hierarchy that articulates back-to-school and back-to-play protocols in simple, human terms.  A monotone regurgitation of standard corporate-speak ‘In these unprecedented times, our dedication to the blah-blah-blah’ is cold comfort to a parent who demands a guarantee of safety once their child’s roommate tests positive for the virus.  The narratives provided to ADs, coaches and staff regarding Pandemic Age public health guidelines must be written and delivered such that constituents feel safe, or all this effort will be for nothing.

Further, Athletic Departments need to be ready, should the unexpected happen, to publicly address the situation. You must be confident, knowledgeable, empathetic and swift. Today, the public expects a decisive response within 120 seconds.  Not days, hours or minutes. Seconds!  Any greater amount of time allows an uninformed mob to frame a false and negative narrative about the athletic department and the university. To protect themselves, ADs must demand new workflows and responsibilities for internal communications teams. They need to be, as the famous lyrics from the musical Hamilton says, “In the room where it happens.”

During the best of times, crisis communications plans are too often an afterthought. Crisis or litigation communications expertise is engaged reactively, expertise is squandered, opportunities are lost.

Solid crisis communicators prepare for multiple scenarios, address an exponential number of outcomes, and reach every potential brand ambassador. Effective and efficient communications are essential to the narration of unique messages in a consistent voice throughout multiple distribution channels.

ADs and coaches must be trained to engage with honesty and empathy. In a public health crisis, you must offer facts and solutions within a narrative that inspires a sense of unity and purpose.

The crisis we now find ourselves in – returning to business despite knowing the danger is still very much among us – is as unprecedented as the novel coronavirus SARS-Cov2 itself. Social media outlets intimately connect us to infectious disease experts and epidemiologists, who in turn share discoveries and insights in real time. But there’s a downside to the digital town square:  health and safety information is presented as equal to theory and opinion.

The information gap is real. And that’s where student-athletes, coaches, and staff are right now. Partisan propagandists are bellowing louder than public health experts. It’s time to take back the virtual microphone. ADs must make operational changes to be prepared to justify health and safety decisions to audiences who have some combination of fear, skepticism, invisibility and vulnerability.

If you’re an AD, ask yourself these questions: are you prepared to justify operational changes to external and internal stakeholders and constituents in simple language? When the unexpected arises under your watch, are you ready to address the situation publicly with the most up-to-date information and without jargon? Do you have current health and safety protocols for practices, games and for working with the media? Most importantly, do the narratives that you, your staff and coaches are sharing help make your constituents feel safe?

Your actions and decisions will be scrutinized under a microscope while facing the glare of the national spotlight. Just as the American public doesn’t understand that a coach isn’t responsible for a Title IX sexual assault case involving one of his or her athletes, they won’t understand how an AD isn’t personally responsible for the health and safety of an individual student-athlete.

We have an opportunity to do better than we have done in the best of times. ADs must truly listen and understand where the strengths and weaknesses are within their in-house communicators both at the athletics and institution level. Review where the gaps are and consider, in these extraordinary times, if the additional perspective, expertise, skills and boots-on-the-ground that outside communications experts is needed. It’s a tremendous amount of pressure. And it’s okay to ask for help.

To determine the scope of your communications bandwidth, ADs can review S.A.F.E. It is a free resource kit and guidelines to help navigate the narratives for their Pandemic Era communications and operation protocols.  It combines the novel need for urgency, accuracy, empathy and flexibility with tried-and-true expertise and multi-level implementation strategies and tactics. It has been customized for multiple industries and is available for higher learning collegiate athletics at no cost.

S.A.F.E. stands for strategic, accountable, flexible and factual and effective and efficient. It includes three blueprints for communicating COVID-19 scenarios: A Pandemic Age Strategic Communications Plan to support operational reentry plans. Pandemic Age Crisis Communications Plan, Pandemic Age Communications Plan for Game Day and Media Interaction. It provides newly created pandemic communications task forces, revised workflows for message creation, approval processes, and deployment and essential check lists of messaging, media and guidelines that should be included in each plan.

S.A.F.E was created by ANACHEL Communications, Inc. in lockstep with public and private sector officials, professional sports leagues, global communications and legal experts to build guidelines and a resource kit to help them navigate the narratives for their pandemic era operation protocols. Please visit www.anachel.com for more information.

Wednesday, July 1, 2020

LEAD1 Association and Google Discuss Changing Behaviors in Sports Fans During COVID-19

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Tuesday, LEAD1 Association (“LEAD1”) hosted a webinar for its member institutions, the final of its three planned webinars for its “Reopening Venues” series. The webinar, a captivating examination into some of the latest trends regarding consumer expectations in sports and entertainment, was led by Mike Lorenc, the Head of Industry for Ticketing and Live Events at Google.

Given the fluid nature of COVID-19, Lorenc emphasized that it is important for athletics departments to make decisions based on current data. In this regard, current data indicates that despite many sports leagues being on pause (until at least later this month), sports fans, at home, still want to be entertained. There have been significant increases, for example, in over-the-top (OTT) and short-form types of media subscriptions. Marketers in athletics departments should also be mindful that people, based on their age, consume media differently. Generation Z (the newest generation), for example, consume more online entertainment, while Baby boomers (born between 1946 and 1964) consume more broadcast television and online press. It is also worth mentioning that according to Google, college football has seen the smallest relative decline in demand (in terms of searches on Google) compared to all other sports.

Despite this pent-up demand for entertainment, many sports fans remain cautious about returning to live sporting events based largely on health and economic concerns. In addition, feelings for returning to live events may be, often times, based upon geography, political affiliations and family situations (for example, households with kids may be more reluctant to attend live events in fear of bringing the virus home); as a result, one-size-fits all should not be a strategy for college sports with respect to reopening venues. Lorenc also highlighted that COVID-19 will accelerate previous trends in entertainment consumption, such as advancing more quickly into a digital future. Live streaming and direct-to-consumer options (such as movies), for example, have been proxies for live in-person experiences. Sports sponsorship will also be impacted, such as sponsors seeking more digital engagement.

So, what is the overall message for LEAD1 athletics departments? Wave now and hug later. Given that consumer expectations change, athletics departments should listen to their fans by surveying (i.e., creating call centers) within their departments to gather information and better understand fan expectations before returning to venues. It is more important to understand the concerns of fans who are undecided on returning to live sporting events than fans more adverse to it. In turn, this can help athletics departments create better marketing strategies to get fans excited to return to live sports. Athletics departments should also invest in content (such as video, social media and other technology) to help fans stay engaged during this uncertain period. In other words, it is important to maintain connection with all fans so when they decide to come back, it will be much easier to reengage them.

Webinar Resources (Recording, Slides, etc.) HERE

Additional Resources:

• Sports Facilities and the Law is a publication that is tracking this issue and other COVID-related issues. It is free to subscribe. You can see the latest issue, and find the subscribe link HERE

Correction: Several LEAD1 institutions have contacted LEAD1 regarding a post that appeared in the LEAD1 COVID-19 Report on Monday about student-athlete liability waivers. These LEAD1 institutions have indicated that the post was inaccurate. We apologize for this mistake as we rely on our contributors to fact check their points. 

Monday, June 29, 2020

Fair or Foul?: College Sports and COVID-19 Liability Waivers

Prepared by Annette Lopez Cremata and Christopher Hood, Boies Schiller Flexner LLP

Colleges and Universities (collectively “Schools”), sports fans, students, and student-athletes, alike, have been wishing for the return of sports. And after months of waiting, we all finally received a glimmer of hope. On June 17, the National Collegiate Athletic Association (“NCAA”) approved a plan to prepare for the 2020 college football season. This plan allows college football programs to begin holding mandatory meetings and engaging in preseason activities as soon as mid-July. The season itself is scheduled to start on August 29, 2020.

But the COVID-19 pandemic still looms and in the past, has sidetracked even the best-laid plans. Just earlier this year, the NCAA was forced to cancel March Madness due to the health and safety concerns raised by COVID-19. And without a vaccine or therapeutic treatment for COVID-19, cases will potentially continue to rise, especially among student-athletes.

Unsurprisingly, athletes in general are particularly susceptible to catching and spreading COVID-19 because of the unavoidable physical contact of many of their sports and the COVID-19-carrying respiratory droplets that result from exercising and heavy breathing. And the case is no different for student-athletes. In fact, since athletic programs began allowing student-athletes to participate in voluntary workouts in June, more than thirty athletes across fourteen college programs have tested positive for COVID-19. There is a risk that this number will continue to increase as more student-athletes return to campus. Thus, in order for Schools to forge ahead with preseason activities and regular seasons while also protecting their student-athletes and larger communities, they will need more than just a Hail Mary. However, Schools and their athletic programs are understandably struggling to reconcile the desire to resume sports and sport-related activities with the need to minimize high-stakes public health issues and even the legal risks that may follow.

One way Schools have been attempting to tackle beginning preseason camps while minimizing public health issues and related legal risks has been to require student-athletes sign liability waivers. For instance, Southern Methodist University in Dallas is requiring its players sign a form called “Acknowledgement of Risk for COVID-19.” Other Schools such as Ohio State University, Indiana University, the University of Iowa, and the University of Tennessee have also adopted this approach and are requiring their student-athletes sign some version of a liability waiver. But in having their players sign a document of this type, Schools and their Athletic Directors may be unwittingly creating more problems for themselves and their students from a legal perspective. Schools should be prepared to answer the following questions: are their liability waivers binding and enforceable legal documents or are they merely educational tools? If meant to be a binding legal document, are the Schools unfairly pressuring students to sign in a way that makes the waivers unconscionable and therefore unenforceable?

How Liability Waivers Work

Although the specific language of aforementioned Schools’ liability waivers vary, they all rely on the same legal principle: assumption of risk. In the COVID-19 College Sports context, this legal principle prevents a student-athlete from recovering damages for COVID-19 contracted when they voluntarily exposed themselves to COVID-19—a known danger.[1] Assumption-of-risk clauses are included in a liability waiver such as those being signed by student-athletes to showcase the signing party’s “decision not to hold the [School] liable” and could be a complete bar to a student-athlete’s recovery of damages.[2] These clauses, like other contractual clauses, are interpreted using traditional contractual principles. One interpretation issue will revolve around just how voluntarily a student-athlete agreed to such a clause when in fact they cannot participate in team activities until they sign the waiver.

The Enforceability of Liability Waivers is Complicated Given the Patchwork Legal Landscape

Using liability waivers in the context of COVID-19 raises unique issues. For one, some state and local governments have legislated away COVID-19 liability.  In North Carolina, for instance, a law that prevents someone who contracted COVID-19 from suing absent gross negligence, wanton conduct, or intentional wrongdoing has passed both chambers of the legislature.[3] Oklahoma and Alabama have also passed similar laws limiting liability.[4]

Conversely, some states have disallowed certain types of liability waivers altogether. The Louisiana Governmental Claims Act notes that state agencies—including public universities—shall not be immune from suit and liability.[5]Montana and Virginia are examples of other states that have at least partially waived sovereign or governmental immunity in some contexts.[6]  The varied nature of the legal landscape raises numerous issues about COVID-19 liability waivers. For instance, issues could arise about the scope of the contractual liability waiver as compared to the scope of the legislative liability waiver. There are also open questions about whether liability waivers could run afoul of state law.

Liability Waivers: Unnecessary or Necessary Roughness? 

Regardless of whether the state in which the liability waiver was signed has legislated away COVID-19 liability or disallowed such waivers entirely, questions exist as to whether these types of liability waivers are unfair to the student-athletes and thus possibly unconscionable and therefore unenforceable. As contracts, liability waivers are subject to the affirmative defenses raised in other contexts. One such defense is unconscionability. Generally speaking, an agreement is unconscionable—and as a result unenforceable—where there is a stark and unfair divide in the relative bargaining power of the two parties.[7] More specifically, a contract can be procedurally or substantially unconscionable and if either or both, a contract is unenforceable.[8]

First, substantive unconscionability relates to the content of the contract terms and whether they are illegal, grossly unfair, or contrary to public policy.[9] One can argue that these waivers are just a way of educating players about COVID-19 and its risks without any real legal standing. And yet, one can also argue these waivers are just another way Schools are unfairly asserting power over their student-athletes. While the language in the Schools’ waivers isn’t identical, they all carry virtually the same message: these are the COVID-19 risks, these are the precautions we can all take, and these are all the reasons you can’t sue us.

One particular way a contract—and waiver—can be substantively unconscionable is if its terms are contrary to public policy, as articulated by courts or by state or federal legislatures.  Simply stated, the public policy exception provides waivers which violate public policy are at the very least unenforceable.[10] In some states, waivers may implicate public policy when they involve a matter of interest to the public, like employment contracts or public services.[11] Here, both COVID-19 and college sports are a “matter of public interest” because, in part, they both involve matters of concern to a substantial number of people and thus implicate public policy.[12] One could argue that because the Schools and Athletic Directors have “superior bargaining power”[13] over the student-athletes and, once they sign the waivers are “placed under the control”[14] of the school, the waivers violate public policy.

Second, procedural unconscionability, by contrast, relates to the circumstances surrounding the contract’s formation, such as whether there is “an absence of meaningful choice on the part of one of the parties”[15] or “contract terms which are unreasonably favorable to the other party”[16] and whether the contract was negotiable or a contract of adhesion.[17] Here, though some waiver provisions specifically note that athletes won’t lose their scholarships if they don’t sign, athletes are barred, until they do, from participating in team activities. One can argue those provisions exemplify the “superior bargaining”[18] power Schools and their Athletic Directors have over student-athletes. It seems the athletes have little, if any “meaningful choice.”[19] They can either sign the waiver or not play until they sign.

One can even argue this take-it-or-leave-it scenario without opportunity for bargaining is akin to an adhesion contract.[20] And “although not all adhesion contracts are unconscionable, an adhesion contract is procedurally unconscionable and unenforceable when the terms are patently unfair to the weaker party.”[21] One can characterize the provision above as a take-it-or-leave-it sign-and-play-or-don’t-sign-and-don’t-play waiver as patently unfair to the players, the weaker party who have little, if any, bargaining power.

Whether these waivers are legally unconscionable will ultimately be up for a court to decide. Regardless, one thing is for certain: both Schools and their student-athletes are facing a Catch-22. On the one hand, it is understandable that Schools wish to re-open, re-start their seasons, and prepare for COVID-19 related litigation by having students sign liability waivers. On the other hand it is also understandable why these liability waivers may underscore how vulnerable players are from pressure from said Schools. To put the Catch-22 in basketball terms, imagine a scenario where a basketball player takes a fifth foul in the fourth quarter of a tie game to stop an open look. That player just gave his team a chance to win but also lost the ability to play for the rest of the game. Here, if Schools wish to reopen, re-start their seasons, and allow students to play, they also open themselves up to COVID-19 related litigation. And if students wish to play, they open themselves up to getting sick and potentially having no recourse.

[1] Express or Tacit Assumption of Risk—Waiver or release, 57B Am. Jur. 2d Negligence § 1008.

[2] Id. 

[3] N.C. Gen. Stat. § 96-14.15

[4] 76 OK Stat. § 112; State of Alabama: Proclamation by the Governor, March 13, 2020.

[5] La. R.S. §§ 13:5101-5113

[6] See, e.g., Va. St. §§ 8.01-195.1

[7] See Desiderio v. National Ass’n of Sec. Dealers, 191 F.3d 198, 207 (2d Cir.1999), cert. denied, 531 U.S. 1069, 121 (2001) (quoting 8 Samuel Williston, A Treatise on the Law of Contracts § 18:9, at 54 (4th ed. 1998)).

[8] Joseph M. Perillo, Corbin on Contracts § 29.4, at 388 (2002 ed.).

[9] Id. 

[10] § 8 Williston on Contracts § 19:21 (4th ed).

[11] See Restatement (Second) of Contracts § 195 (1981).

[12] See, e.g., Moore v. Univ. of Notre Dame, 669 F. Supp. 1330, 1336 n.11 (N.D. Ind. 1997) (holding college sports is a matter of public interest; Rogers v. Grimaldi, 695 F. Supp. 112, 117 (S.D.N.Y. 1988) (likewise holding college sports is a matter of public interest); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *9 (M.D. Pa 2020.) (holding efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest); Hilton v. Hallmark Cards, 599 F.3d 894, 907 (9th Cir. 2010) (holding a matter of public interest one to be of concern to a substantial.

[13] The seminal case regarding the public policy rule, Tunkl v. Regents of the University of California, concluded that exculpatory agreements violate public policy if they affect the public interest adversely and identified six factors relevant to this determination. Tunkl, 383 P.2d at 446. Most relevant are the factors discussing the “superior bargaining power” of the party seeking the waiver and the other party being “placed under the control” of the party seeking the waiver, “subject[ing] them to the risk of carelessness” by the party seeking the waiver. Id. 

[14] Id. 

[15] Desiderio v. National Ass’n of Sec. Dealers, 191 F.3d at 207 (quoting 8 Samuel Williston, A Treatise on the Law of Contracts § 18:9, at 54).

[16] Id. 

[17] See, e.g., Moore v. Univ. of Notre Dame, 669 F. Supp. at 1336 n.11; Rogers v. Grimaldi, 695 F. Supp. at 117.

[18] Tunkl, 383 P.2d at 446.

[19] Id. 

[20] “An adhesion contract is a standardized contract that a transacting party with superior bargaining strength offers to a “weaker party on a take-it-or-leave-it basis, without opportunity for bargaining.” Jerry Erwin Assocs., Inc. v. Estate of Asher by & through Zangara, 290 F. Supp. 3d 1213, 1252 (D.N.M. 2017).

[21] Id. 

Thursday, June 25, 2020

LEAD1 Association Virtual Forum Discusses Hot Topics in College Athletics

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Wednesday, LEAD1 Association (“LEAD1”) hosted a webinar discussing some of latest hot issues in college sports. The panel, moderated by Stewart Whitehead (Chair of Universities & P3 Industry Group at Winstead PC), featured Dennis Braham (Co-Chair of Sports Business & Public Venues Industry Group at Winstead PC) and Mike Perrin (Of Counsel at Winstead PC and former University of Texas Men’s Athletic Director). Braham opened by the panel by emphasizing that the nature of business deals between athletics departments and vendors and other concessionaires (e.g., sponsors) may change dramatically as a result of COVID-19. Because previous contractual agreements may need to be adjusted based on the pandemic, Braham’s advice for athletics departments is to proactively examine the strengths and weaknesses of all current contracts. In this vein, athletics departments should be open-minded with respect to changing current agreements with sponsors (at least for temporary changes). Such possible changes may be based on a number of considerations including available amenities and allowable attendance figures in venues (largely influenced by state and university regulations).

Whether fans are sitting in the stands or not, due to the pandemic, there may now be additional opportunities for athletics departments to monetize their virtual content. Sponsors, for example, may ask for virtual advertising (that was not necessarily agreed to in the original contract). In addition, increased social justice activities may now have an impact on sponsorships. To this end, athletics departments should be cognizant of all sponsorship branding and agreements may need to be modified accordingly. Furthermore, sponsors that have been impacted by COVID-19 (that may have had certain revenue expectations) may have walk-away rights and thus athletics departments should be flexible in terms of compromising with such sponsors.

Braham also made the critical point that most current contracts likely inadequately address the issue of force majeure, a common clause in contracts that mitigates legal liability to parties from an obligation when an extraordinary event occurs. Moreover, many types of insurance coverages may not cover loss of income due to COVID-19 because the pandemic does not involve the common sort of physical damage to facilities (as a result, athletics departments should address force majeure in their current and future contracts). In addition, despite some capital markets being in turmoil, with respect to public-private partnerships, as it relates to venues, Braham encouraged athletics departments to continue planning so universities, from a marketing standpoint, can remain competitive in all aspects of the higher education experience.

Perrin then discussed the current legal and legislative landscape as it pertains to the issue of student-athlete name, image and likeness (NIL) compensation. To highlight some of Perrin’s comments, there are now 37 states that are considering passing NIL models and there have been several introduced bills from Congress (including from Sen. Rubio this past week). In addition, other than groups such as LEAD1 and the Knight Commission, the Uniform Law Commission (ULC), a body that aims to bring stability to key areas of state statutory law, is analyzing the NIL issue and the various potential guardrails that may be needed within a regulatory structure (see more on this below). It is also worth mentioning that, just this past week, a new lawsuit was filed against the NCAA and several conferences on the NIL issue.

Finally, Perrin highlighted some of the guardrails that may be needed within an NIL regulatory structure including establishing fair market value, addressing channel conflicts between preexisting team contracts and potential student-athlete NIL deals (included in many of the state bills), concerns with regard to boosters, and the possibility of establishing a third-party (separate from the NCAA) where NIL deals could be disclosed.

Webinar Resources (Recording, Slides, etc.) HERE

Other Materials/Resources:

• Winstead University Industry Group Information and Client Alert: College Athletes May be Paid for Name, Image & Likeness, May 5, 2020
• Copy of House et al v. National Collegiate Athletic Association et al, 4:20-cv-03919, California Northern District Court, Filed: 06/15/2020

Wednesday, June 24, 2020

LEAD1 Association Virtual Forum Covers All Things Testing for COVID-19

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Tuesday, LEAD1 Association (“LEAD1”) hosted a webinar to help its member institutions better understand all aspects of testing for COVID-19. The testing subject is critical for college sports because as testing advances, so does the hope for the eventual return of college sports. The panel featured Joyce Gresko (Partner at Alston & Bird; who is also the Legal Counsel at the American Clinical Laboratory Association (ACLA)) and two representatives at Eurofins, a worldwide laboratory testing company, David Morgan (President of Eurofins Transplant Diagnostics U.S.) and Sean Murray (President of Eurofins).

Gresko opened the panel by providing an overview of COVID-19 testing and relevant regulations. First, Gresko highlighted that COVID-19 tests are typically performed in reference laboratories (such as Eurofins) or in a physician’s office or hospital. Second, Gresko outlined the various COVID-19 tests performed and their specific uses. PCR and Antigen tests, for example, are used to diagnose active cases of COVID-19. Antibody tests, on the other hand, are used to determine whether someone has been previously exposed to the virus. Third, Gresko stated that various specimen types may be used for testing purposes such as nasal swabs, saliva specimen and blood samples (for Antibody tests).

Fourth, Gresko highlighted the ramifications of testing results and some of the regulations that determine who can ultimately get the results. A positive or detected result from a PCR test, for example, means that the virus has been detected and the individual would be presumed contagious – even without symptoms.  A detected result from an Antibody test indicates that the person may have been previously exposed to COVID-19, however, this result does not tell the individual whether they are still infected. It is worth mentioning that a detected result from an Antibody test does not necessarily mean that a person is immune to the virus – in other words, science has not fully determined the ramifications of a positive Antibody test. Moreover, the determination of who gets the testing results are guided by CLIA and HIPPA regulations (e.g., where the tested individual must consent). Fifth, Gresko described who pays for COVID-19 testing noting that “there is no such thing as free lunch.” While Congress has allocated some money to states for testing, many schools, for example, are paying out of pocket. Who pays also depends on whether the test is diagnostic (e.g., a common lab test to determine if an individual is symptomatic), a screening test (such as returning to school or work) or a public health test (to determine how far the disease may have spread into a certain community). Sixth, Gresko outlined various things to consider when contracting with a lab. It is important, for example, to make sure that the lab is CLIA certified. Gresko also recommended that schools develop a “Master Services Agreement” when contracting with a lab and that individual agreements may be needed for each sport.

A couple other important notes from Gresko. First, most of the testing in the U.S. is being done by a handful of commercial labs (both for regular testing and specimen collection (e.g., specimens are taken to lab for the testing to be done).  In this regard, most of the previous supply shortages with regard to testing have been addressed (at least for now). Second, on specimen pooling (which we have seen in the news related to college basketball), a laboratory technique to save money and use fewer resources (mostly used for asymptomatic people), the FDA has recently released guidance on this issue — specimen can be tested in batches and if no virus is detected in the batch, a conclusion may be drawn that no one whose specimen was included currently has COVID-19.

Eurofins then emphasized some of the key aspects of a good COVID-19 risk reduction program including physical separation, creative work arrangements and appropriate testing. In this regard, good COVID-19 risk reduction programs may include dedicated work spaces, athletes practicing in sub-groups (i.e., positions in football practicing and living together), requiring mask usage wherever feasible, time restrictions in locker rooms and “shift” workouts instead of team workouts. Eurofins made the critical point that even if colleges and universities take these actions, testing is still the cornerstone of any good risk reduction program due to the invisible nature of COVID-19 (people could therefore spread the disease unknowingly). To this point, unlike previous diseases, the majority of the spread of COVID-19 occurs “silently.”

In addition, Eurofins outlined four key elements of an effective COVID-19 testing program. First, it is important to design testing protocols, for example, by determining the frequency in which to test based on various considerations such as the confirmed local positive growth rate, number of people onsite, and budget available. Second, colleges and universities can organize testing by choosing a lab that is nearby and implementing simple protocols such as collecting specimen on the same day(s).  Third, real-time data can be used to monitor testing results, for example, contact tracing via smartphones can be used to identify people who may have come into contact within an individual who has tested positive for COVID-19. Finally, reducing risk, such as implementing a testing regime can help colleges and universities measure the spread of COVID-19 and provide a better understanding of actions that may or may not be working.

The panel also addressed various situations as it relates to college sports specifically such as approaching situations in which a student-athlete may not be forthcoming with respect to their symptoms, testing that may be needed based on particular sport, the possible risks associated with pooling, the ramifications of COVID-19 coupled with the flu season and the NCAA’s guidance in this area.

In the next several weeks, LEAD1 will continue to be the place to be for all things COVID-19 testing for college sports. Please stay tuned.

Webinar Resources (Recording, Slides, etc.) HERE

Tuesday, June 23, 2020

College Athletics: Insurance and Risk Considerations Amid Pandemic Uncertainty

Prepared by: Warren Harper, Chad Wright, and Peter Lacovara, Marsh LLC

The last several months have been extraordinarily challenging for all of us. Across the country, millions of people have fallen ill — and thousands have died — from COVID-19. Many businesses are in dire straits. And anxiety and uncertainty have become the norm. Compounding these challenges is that many forms of live entertainment — including sports — that have offered an escape to Americans during past crises have been halted amid the pandemic.

While economies are gradually reopening and society is slowly moving toward a new normal, great uncertainty remains, including for athletic programs that can represent significant sources of revenue for colleges and universities. As they make decisions about when, where, and how to resume competitive play and other activities, risk professionals and senior leaders should work with their insurance and risk advisors to review relevant insurance coverage and to explore and adopt strategies that can help mitigate and manage potential safety, operational, and financial risks.

Event Cancellation Coverage Has Limitations
Event cancellation insurance coverage — which some colleges and universities have traditionally purchased — could respond if an event must shut down because of a confirmed COVID-19 case on a venue’s premises or a ban on mass gatherings by local or state government. Some forms of event cancellation coverage have typically included communicable diseases; in other cases, this coverage was specifically excluded, but — prior to the start of the COVID-19 outbreak — policyholders could generally add it back if willing to pay additional premium.

Following considerable losses related to COVID-19, however, most event cancellation insurers are now excluding coverage for communicable disease. It’s also important to note that event cancellation coverage will likely not respond if an event is preemptively cancelled due to fear of the pandemic’s spread, and policies often require that an organizer make a good faith effort to reschedule an event before cancelling it.

Exclusions in Other Forms of Insurance
Some other forms of commercial insurance coverage could also respond to potential losses. The last several months, however, have demonstrated that these options can have significant limitations. For example:

• Standard property insurance policies generally are triggered by insured physical loss or damage. But if COVID-19 manifests at an insured’s premises, insurers may contend that there has been no physical loss or damage. Insurers could also seek to invoke “contamination” or other policy exclusions.
• Policyholders may look to the interruption by civil authority extension in their business interruption policies for potential coverage — for example, arising from shutdowns and closures such as those mandated by governors in many states. Insurers, however, may argue that shutdown orders in and of themselves do not trigger coverage.
• Workers’ compensation coverage may respond in the event that employees — including coaches, trainers, security staff, and others — contract COVID-19 in the workplace. But as the disease has spread, it has become increasingly difficult to determine whether an illness is the result of a workplace exposure.
• A claim brought by a third party — for example, a spectator or vendor — for bodily injury or property damage resulting from an alleged unintentional or negligent failure to protect from the virus could be expected to fall within the basic coverage grant of a general liability insurance policy. Insurers, however, may seek to assert exclusions for pollution, fungi/bacteria, intentional acts, and communicable disease.

Risk professionals should work with their brokers to understand key language in these and other policies, seek to remove exclusions where possible, and prepare for potential claims filings.

New and Emerging Solutions May Provide Recourse
Although traditional forms of coverage can provide some protection, colleges, universities, and others generally have had few dedicated pandemic coverage options. But the insurance industry is working to develop new solutions.

Marsh, together with Metabiota and Munich Re, sought to address this gap as early as 2018 by launching PathogenRX to help organizations mitigate the financial risks posed by outbreaks, epidemics, and pandemics. PathogenRX can provide customizable coverage for the loss of gross profits, loss of revenue, and extra expense incurred as a result of an infectious disease event in a designated geographical coverage area. Coverage can be triggered by straightforward, objective metrics, such as mortality count, or explicitly defined events, such as a civil authority lockdown or the declaration of a public health emergency.

Although coverage via PathogenRX for COVID-19 specifically has not been available since the outbreak began to spread in early 2020 — and will likely not be available in the event of a second COVID-19 wave — organizations can obtain coverage for future events. Prospective buyers, however, should be mindful of the high customer demand, which could slow the purchasing process, and potential limitations on available capacity driven by other factors affecting the overall insurance marketplace.

Given the limitations of the commercial insurance marketplace in offering viable pandemic coverage options to buyers, Marsh has advocated on behalf of our clients for the creation of a public-private pandemic risk solution that can accelerate economic recovery and provide much-needed protection against future pandemic risks. Legislation to create such a program — the Pandemic Risk Insurance Act of 2020 — was introduced in the US House of Representatives on May 26 and is currently being considered by lawmakers.

Marsh will continue to engage with policymakers in Washington — together with national risk management and industry trade groups — to advocate for a pandemic solution that includes coverage for event cancellation and other business priorities. Such a solution should prioritize resilience and mitigation and bend the risk curve for all stakeholders. We’ll also continue to explore other options — like PathogenRX — to help organizations and their risk professionals to better manage future pandemic-related risks.

Protecting People and Operations
As college athletic programs resume, it will be incumbent on organizers’ health and safety teams to work with local and state authorities and public health officials to minimize the risk of transmission among players, fans, coaches, and others. In April, the World Health Organization (WHO) published interim guidance for sports event organizers that are planning mass gatherings in the context of COVID-19. Among other actions, the WHO recommends that organizers:

• Make hand sanitizer readily available to players, spectators, and others.
• Check players’ temperatures daily.
• Ensure capacity to isolate suspected COVID-19 cases.
• Provide players with clean water bottles and towels, which should be for single use only.
• Disinfect key surfaces several times per day.
• Ensure medical staff and sick individuals have access to medical masks.

Beyond these actions, organizers should ensure that employees receive proper training on COVID-19 and that key risks are communicated to both players and fans before they attend or participate in any events. College and university staff should also work with venues to consider revised seating plans and queueing and restroom arrangements to promote physical distancing, and enable entry screening and the use of e-tickets. And they should ensure that caterers and other vendors adhere to high standards on hygiene and are able to support mobile/digital payments instead of cash to reduce physical contact.

In addition to people, risk professionals and leadership must also protect their bottom lines. Beyond working with brokers to manage insurance programs, organizers and their in-house and outside counsel should review critical contracts — including with venues and broadcasters — to understand the financial implications of further cancellations, delays, and other potential scenarios, and carefully consider whether to extend or renew sponsorship and licensing contracts that could present liabilities. Organizers should also consider whether to revise ticket refund policies, terms, and conditions.

Staying Agile and Resilient
Before COVID-19, some organizations might have had “pandemic” on their risk registers, but had never taken steps to truly prepare for a situation like the one we’re in. Organizations now have a greater understanding of pandemic risk, but with so much focus on immediate steps necessary to reopen and to begin scaling operations, many are not thinking further ahead.

Even as the first wave of COVID-19 cases in the US has not subsided, colleges and universities should be preparing for a possible second wave of infection during the academic year. Schools resuming athletic programs now may be forced to make difficult decisions, including slowing their reopening plans, or even shutting back down. Fears about the pandemic may also heighten absenteeism among players and coaches and contribute to limited attendance by fans.

Risk professionals, working closely with their risk consultants and other advisors, should envision various risk scenarios for college athletic programs and build game plans to address them. Consider a hypothetical scenario surrounding a second wave of COVID-19, using a financial stress test approach. The list of questions will vary based on each organization’s situation, but generally would include:

• What will it mean for us if the second wave starts in October 2020 versus January 2021?
• What if the US experiences the second wave before other geographies, receiving less warning and lead time than we did with the first wave?
• What if we have 90 days — instead of 180 — to understand the potential effects and scale operations?
• How do the impacts on players, coaches, fans, and others vary under different timeline scenarios?
• How will it affect our relationships with broadcasters, venues, vendors, and others?
• What are the conditions that would necessitate slowing down our reopening or contemplate shutting back down?

Understanding different scenarios and asking questions such as these will allow risk professionals, financial experts, and others to begin modeling financial impacts and make decisions around the way they allocate risk resources or risk capital.

Managing Risk and the Unknown
The COVID-19 pandemic is far from over, nor is the uncertainty for college athletics programs, players, and fans. As the crisis continues, it’s imperative that risk professionals and senior leaders — in consultation with their insurance and risk advisors — closely examine their insurance programs, take steps to protect people and finances, and plan for what’s ahead.

Warren Harper is a managing director and Sports & Events Industry Practice leader within Marsh’s International Division. Chad Wright is a managing director and head of North American Alternative Risk Transfer at Marsh. Peter Lacovara is a senior vice president and Marsh’s Alternative Risk Transfer leader.

Monday, June 22, 2020

Recovering Lost Athletic Department Revenue From Insurers

Prepared by: William Bloom, Associate & Meghan Strong, Associate, Boies Schiller Flexner LLP

Alabama’s goal line stand to win the 1979 Sugar Bowl. Boise State’s Statue of Liberty play. Doug Flutie’s Hail Mary. The Kick Six. The Play. These moments live in the collective memory of college football fans and immortalized the players behind them. Yet etched in that memory is the roar of the crowd as the impossible became possible. Perhaps no class of sports is more associated with its fandom than college athletics. That is why it is so difficult to imagine a season of college athletics with limited fan attendance As university administrators and athletic directors are aware, though, such limitations on attendance will be difficult to avoid as the COVID-19 pandemic continues. Beyond its effect on the viewing experience, limitations on attendance at athletic contests will result in a significant loss of revenue for athletic departments around the nation. By one estimate, without the ticket revenue from college football alone, only two athletic departments will be able to cover expenses without relying on student fees or university support. And the cancellation of the men’s Division I basketball tournament already cost the NCAA nearly $375 million that would have otherwise gone to member schools. While they cannot conjure the magic of a sold out college stadium, insurance policies may offer a means of collecting lost revenue associated with restrictions on attendance at college sporting events. University administrators should be aware of their various options in filing insurance claims for lost athletic department revenue and why a rejection letter from their insurer is far from the end of the process.

When examining whether insurance provides a potential means of recouping lost athletic department revenue, university administrators should look to their property insurance policies. Such policies may offer business interruption coverage, which is designed to compensate a business for lost revenue if it is temporarily unable to operate or its operations suffer a slowdown. A variety of businesses throughout the United States have filed claims against insurers for COVID-19-related business interruptions, including restaurants and bars. The argument for business interruption coverage for athletic departments is similar: as a result of COVID-19, colleges and universities suffer losses in revenue due to cancelling sporting events or hosting such events with restrictions on spectator attendance.

Admittedly, insurers have pushed back against entities that have filed claims for business interruption losses related to COVID-19. A consistent refrain from recalcitrant insurers is that the insured must suffer direct physical damage to or physical loss of the property in order to utilize business interruption coverage. Such an argument ignores the fact that the presence of SARS-CoV-2, the virus that causes COVID-19, itself results in physical damage to the property in question. Beyond semantics, courts have held that where a foreign substance precludes the intended use of property, an owner suffers a direct physical loss of that property.[1] Such decisions cast doubt on insurers’ argument that structural damage is required to seek business interruption coverage.

Insurers have also argued that, even if business losses caused by COVID-19 seemingly fall within the terms of a property insurance policy, insurers did not intend to cover such losses with those policies. At least one insurance industry official has publicly argued that “Unless somebody specifically said, ‘I’d like coverage to cover viruses and a pandemic,’ and that was put in, the policy was not designed or priced or intended to cover that.” But a review of the basic structure and text of property insurance policies casts doubt on such a broad proposition.

Business interruption coverage tends to fall within two categories: “named peril” or “all risk.” Named-peril coverage includes an explicit list of the sort of risks that are covered, whereas all-risk coverage covers all risks except those explicitly excluded. In 2006, insurers responded to the worldwide SARS outbreak by creating a specific exclusion for losses or damages resulting from “any virus, bacterium or other microorganism.” While some policies include that viral exclusion, others do not. As plaintiffs seeking business interruption coverage for COVID-19-related losses have noted, where an all-risk policy fails to explicitly exclude viruses, it undermines the idea that the policy was not “designed” or “intended” to protect against viral outbreaks such COVID-19.

Civil authority provisions present another potential avenue for colleges and universities to recoup lost athletic department revenue. Such provisions insure against the loss of revenue that results from government actions preventing or limiting the use of a business. As mayors and governors begin announcing substantial limits on the number of spectators who can attend college sporting events beginning in the fall, it is easy to see how civil authority provisions may help mitigate the damage caused by limited spectator attendance. Where colleges and universities find themselves subject to such restrictions imposed by state or local governments, civil authority provisions may allow them to recoup resultant lost revenue.

Outside of property insurance, colleges and universities should examine event-cancellation policies for sporting events negatively affected by COVID-19. Event-cancellation insurance pays for lost revenue that results from the cancellation or reduction of attendance at particular events. Notably, such policies tend to be tailored toward individual clients and might cover state or local limitations on the size of attendance at sporting events or the inability of individuals to travel to the insured event. They may also include virus exclusions akin to those found in some property insurance policies. As a consequence, it is important for university administrators to review such policies with legal counsel when determining whether their policies cover losses associated with COVID-19-related restrictions.

Perhaps more important than the arguments supporting insurance coverage for lost athletics revenue resulting from COVID-19 are the steps university administrators should take to protect their ability to pursue such coverage. To receive the protections they paid for with their insurance premiums, colleges and universities should consider filing an insurance claim to perfect and preserve their potential legal remedies. Claims should be worded broadly to avoid an insurer narrowly construing the request. Indeed, obtaining legal counsel to assist in crafting those claims can lay the foundation for a successful legal battle in the event an insurer rejects a claim. Even where a policy appears to cover an athletic department’s lost revenue due to COVID-19, colleges and universities should not be surprised if their insurer rejects their initial claims. Such rejections are the time when attorneys can assist with further negotiations with insurers and, if necessary, litigation to enforce and collect on insurance policies. Although this season of college athletics will indeed be unprecedented, the protections afforded by insurance policies can help alleviate the financial toll on athletic departments.

[1] See Oregon Shakespeare Festival Ass’n v. Great Am. Ins. Co., 2016 WL 3267247, at *9 (D. Or. June 7, 2016) (wildfire smoke that infiltrated a theater “and rendered it unusable for its intended purpose” was a “physical loss or damage to property”), vacated by joint stipulation of the parties, 2017 WL 1034203 (D. Or. Mar. 6, 2017); Gregory Packaging, Inc. v. Travelers Prop. Cas. Co. of Am., 2014 WL 6675934, at *6 (D.N.J. Nov. 25, 2014) (an ammonia release that rendered a facility unusable for a period of time caused “direct physical loss of or damage to” the facility); Widder v. La. Cit. Prop. Ins., 82 So. 3d 294, 296 (La. 2011) (intrusion of lead-based paint, which originated in part from outside the property, resulted in “a direct physical loss”).

Thursday, June 18, 2020

LEAD1 Association Virtual Forum Discusses Strategies in Ticketing For Reopening Venues

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Wednesday, with more than 800 registrants on its virtual forum, LEAD1 Association (“LEAD1”) hosted a webinar for its member institutions, the second of three for its “Reopening Venues” series. The panel, moderated by Lisa Walker (Senior Vice President, Business Development College Athletics at Eventellect), featuring Maureen Andersen (President & CEO at the International Ticketing Association (INTIX)), Anthony Esposito (Vice President, Ticketing Operations at the Atlanta Braves) and Rick Thorpe (Deputy Athletics Director, External Engagement at the University of Arkansas (The U of A), discussed some of the strategies in ticketing for the return of college sports.

Andersen opened the panel by emphasizing that “one-size-fits-all” will no longer be acceptable policy for college sports fans. In other words, athletics departments will need to be flexible in terms of catering their specific ticketing and game-day policies for various segments of fans. A 65-year-old fan, for example, may have different needs than a fan in their mid-20’s based upon possible risks and concerns related to COVID-19. In addition, “no refund” policies may be a thing of the past as fans may no longer accept vouchers as reimbursement for being uncomfortable to attend a live sporting event.

Athletics departments may also need to provide greater flexibility with respect to season ticket packages (i.e., opportunities to defer payments and/or provide full refunds) and implement various new policies for game-day operations (such as scheduling timed entries into venues). Andersen further stressed the fluid nature of the COVID-19 pandemic and its impact on college sports’ ticketing policies (for example, the Centers for Disease Control and Prevention (CDC), frequently updates its guidance). For instance, what happens in game one of fans’ return to venues may look vastly different than games two and three based upon lessons learned as venues reopen. Finally, Andersen highlighted that every segment of the live entertainment industry should look to each other for guidance. Countries outside of the United States, like Australia, for example, have developed technology and live entertainment risk mitigation strategies that college sports can use as guidance.

Esposito then used Major League Baseball (MLB) as an example with respect to the ticket purchasing and gate entry experiences. Fans who purchase tickets online, for example, may be asked to sign a health waiver, essentially assuming the risks of attending a live sporting event. Securing tickets at the box office may also change with potential cashless-only ticketing policies and changes at will call (because of fan concerns regarding touching paper ticket stocks and envelopes). Gate entry policies may also change such as venues establishing temperature checks before fans enter stadiums. For instance, tented areas will likely be established by entrance points for any fan’s temperature above a certain threshold. Depending on the situation, fans with a temperature above that certain threshold, could then be brought into an air-conditioned environment for further evaluation before a final determination regarding entrance into the venue. In addition, in-venue staff will likely be required to wear masks and fans will be prohibited from sitting in aisle seats to maintain social distancing (for fans walking down aisles). It is also worth mentioning that Esposito’s, the Atlanta Braves, will likely only sell individual game tickets, while possibly granting priority purchasing to current season ticket holders.

To round out the panel, Thorpe highlighted the importance of maintaining trust with college sports fans and reiterated the need for evolving ticketing strategies. For example, Thorpe’s, the U of A, has frequently updated its fans regarding the status of ticketing and created flexible deadlines for renewing football season tickets (such as creating customized payment plans and extending renewal deadlines). Thorpe also underscored that in all decision-making with respect to reopening venues, the health and safety of its fans is always prioritized (in this regard, the U of A predicates all of its venue planning based upon federal and state medical guidelines). With respect to Olympic sports, for example, the U of A will reserve all seats to maintain social distancing. At the same time, the U of A, will still attempt to maximize fan access by exploring alternative fan experiences and maximizing the number of fans who attend games this season (such as by offering partial season plans).

Please Note: Part Three of LEAD1’s “Reopening Venues” webinar series, entitled “Navigating Changing Behaviors in Sports Fans During COVID-19,” will take place on Tuesday, June 30^th at 1:00 PM EST. This webinar will feature Michal Lorenc (Head of Industry, Ticketing and Live Events at Google) who will compare real-time data to help the college sports industry better understand fans’ readiness to return to sporting events, as well as how the sports industry can evolve in a post-COVID world.

Webinar Resources (Recording, Slides, etc.) HERE

Wednesday, June 17, 2020

COVID-19, Higher Education / College Athletics, Executive Search

Prepared by Jeff Schemmel, Founder and President, College Sports Solutions (CSS) & Dan Walters, Associate Partner, Higher Education and Sports Practice, Buffkin/Baker

COVID-19 has altered hiring and executive search practices in Higher Education and College Athletics just as it has many other industries around the

world. The goal of building a diverse and highly qualified candidate pool and ultimately finding that next dynamic leader has not changed, but many details and nuances of the search process have changed dramatically. Below we look at the specific turnover in NCAA Men’s College Basketball Head Coaches and the overall impact of Covid-19 and the search process.

LACK OF TURNOVER IN COLLEGE BASKETBALL
One needs to look no further than major college basketball to see the depth of the Covid-19 labor market disruption. During this 2020 academic year, there have been only four Men’s (1) and Women’s (3) basketball coaching changes in the so-called “Power 5” conferences. This is a dramatically lower number than what college basketball has experienced and grown accustomed to in recent years. It is also apparent throughout the Group of 5, FCS and other NCAA divisions.

This slowdown can be primarily attributed to multiple financial issues that have confronted every collegiate athletic department in the country. There are also significant concerns about building a deep candidate pool and executing a thorough search.

BUDGETARY, RECRUITMENT & SEARCH EXECUTION CONCERNS EFFECTING HIRING and TURNOVER

• Hiring freezes and salary reductions are prevalent on nearly every campus
• State Budget Reductions
• Concern surrounding 2020 Football and Basketball Season
• Potential disruptive effects on University and College Fundraising / Advancement Initiatives
• Candidate recruitment concerns
• Restrictions on meeting candidates in person

Although it is widely believed that many of the above budgetary concerns and their effects will stay with college athletics for years to come, it is still too early to know the permanent impact and fallout of Covid-19. What we do know and have already experienced are the many changes to the search process necessitated by the social restrictions in place across the country. Search processes have become much more virtual with new and refined norms that effect both candidates and hiring authorities. What we would never have considered in the past may well become the new and continued normal.

NEW NORMS for VIRTUAL INTERVIEWS

• Candidate Perspective   
  • Know your Technology (video, audio, internet connection, sharing files, familiar with platform)
  • Virtual Professionalism
    • Know your surroundings / background, what are you portraying
  • Understanding your audience is more important than ever
  • Understand the interview format and expectations
  • Be Yourself

• Hiring Authority Perspective
  • Technology platform – what is best for the most engaging experience?
  • How will the questions be asked?
    • Follow-Up Questions?
  • Who will lead the discussion?
  • More in depth due diligence on candidates
    • Leadership / Personality Assessment?
  • Third party background checks

SILVER LININGS / POSITIVE CHANGE
With every difficult situation and disruption there are typically silver linings and positive change. We are either experiencing or expecting to experience the following:

• More candidates can be engaged / interviewed
• Multiple interviews are more possible and more time efficient
• Cost Savings – virtual interviews are much less expensive
  • no airport interviews
  • less or no on-campus interviews
• Greater foresight and thoughtfulness on long term financial obligations
• An overall greater efficiency and expedited process

Ultimately, we are still in the early innings of the Covid-19 Pandemic and its effects on College Athletics. However, leadership positions will continue to turnover and strong forward-thinking leadership has never been more important. Institutions, hiring authorities and potential candidates must embrace the current and continuing virtual realities and opportunities of conducting a successful search in this evolving environment.

Tuesday, June 16, 2020

Preparing for GameDay

Prepared by Jordan Fladell, CEO, MLevel

Preparing for GameDay – How to best educate your staff, fans and put your University in the best position to succeed.Athletes have begun to return to campus and summer workouts are getting underway. It is now time to turn our attention to GameDay as we are less then 12 weeks away from kickoff. As you build your plans to welcome fans back to your campus it is important to both prepare them and your staff on how to best operate in this new COVID-19 world.Address the planning. It is important for each university to build comprehensive plans that cover everything from tailgating to leaving the arena. Items on your list should include items such as follows:

• Social distancing requirements during tailgating
• Use of Facemasks both in the parking lot and stadium
• Entry time and procedures to get in the building
• Temperature checks or any other precautionary health checks
• Flow of traffic upon entering the stadium
• Concession line rules of operation
• Bathroom rules of operation
• In game movement rules of operation
• Post-game exit rules of operation

Each one of these items are important and for your game day staff, however, we would add the following.

• How to deal with fans who do not follow the rules
• Do not show up to work if you are not feeling well
• Health checks for staff on game day what to expect

Once these plans are laid out the next and most important step is educational training. Due to COVID-19, the previous models of educating game day staff in person should be changed. It is important to train all game day staff virtually before they arrive at your arena to ensure they do not show up sick and that they are prepared to implement your game day operations. It is recommended that you have the platform/capability to track all educational training should an employee and/or contractor files a workers comp claim or gross negligence lawsuit you have the data handy to demonstrate your University did effectively train all staff.

Beyond the staff, Universities should take the extra step of educating alumni, fans and most importantly both suite/season, and individual game ticket holders. While having the consumer sign a waiver of liability may be a good idea, taking the extra step of educating them on your new game day experience will help your staff make sure those regulations are followed.

Educational recommendations for the fan/consumer:

• Point of Entry. Letting your fans know they need to enter the building 90 minutes early to allow for longer wait times due to limited gate staff or health checks will help your game day security team keep them calm while they wait in line.
• Exit procedures. We have already seen examples of failures in this arena within the airline industry due to the impatience of human beings. One idea to try could be controlled exiting by sections in order to control flow.
• Financial fundraiser. Ask the fan base for help financially and include a donation link at the end of the fan education to help off set the additional costs and lost revenue your University faces due to COVID-19.

Monday, June 15, 2020

Compliance Considerations for Cutting Sports in the COVID-19 Era

Prepared by LEAD1 Association and John Long, Of Counsel (Houston), Jackson Lewis PC

One of the externalities of the COVID-19 pandemic has been the loss of intercollegiate sports programs across the United States. Between March and June 2020, 30 NCAA Division I sports teams have been discontinued, with more cuts likely coming. Cutting a varsity sport, much less a Division I varsity sport, is no easy decision for college administrators. The current economic reality on campuses across the country may prevent the choice to save athletic opportunities.

Understanding the unfortunate reality that sports cutting may be unavoidable, administrators should appropriately calculate the impact that reclassification or elimination of a sport will have on the institution’s compliance with Title IX. Title IX requires that institutions appropriately provide athletic opportunities accommodating the interest and athletic abilities of its students.

To comply with the Interests and Abilities component of Title IX, institutions must provide competition opportunities at the appropriate competition level while also meeting at least one part of the “three-part test” for competitive opportunities. These aspects are critical in assessing the impact of cutting or reclassification a sport on Title IX compliance.

Institutions should also look to the “two-part test,” in assessing whether the school would still be providing competition at the appropriate level of competition after elimination or reclassification of a program. An institution should be able to demonstrate that it is still providing competition at the appropriate level, even after elimination or reclassification of a program, by meeting one of the two tests offered under the two-part test.

The first test requires institutions to assess information related to the competitive level of scheduled competition for its remaining varsity programs. A close proportionality of the percentage of events scheduled at the equivalent competition level for men’s and women’s sports is indicative of compliance with the first test for competition levels. Institutions should ensure that its remaining Division I male and female sports continue to predominantly play against Division I competition.

The second test for competition levels involves a demonstration that the institution has a history of and is continuing to upgrade the competition level for the underrepresented sex. Declassification of sports participated in by the underrepresented sex on campus will present an issue for institutions who rely on the second test to demonstrate that they are providing the equivalent quality of competitive opportunities for men’s and women’s sports.

In addition to assessing the competitive levels of men’s and women’s sports, institutions will also need to determine if it will still be providing equivalent competitive opportunities for men’s and women’s student-athletes after the elimination or reclassification of varsity sports. As alluded to earlier, this assessment involves an analysis of the three-part test for competitive opportunities. To comply, institutions will need to demonstrate that they accommodate interests and abilities under at least one of the three parts.

• Part I: Proportional participation of male and female athletes in varsity athletics program; OR
• Part II:  A history of program expansion for the under-represented sex; OR
• Part III: Present accommodation of interests and abilities.

While cutting the over-represented sex’s (oftentimes men’s)sports opportunities has been supported by some courts as a legal manner to comply with Part I – Proportionality, the elimination or reclassification of a sport may jeopardize the institution’s ability todemonstrate compliance with Part II and Part III of the three-part test. Institutions cutting sports should take meticulous care in ensuring that they will be able to manage the rosters of its remaining sports to stay within an appropriate threshold of proportionality.

The Office of Civil Rights – the executive agency tasked with interpreting and enforcing Title IX – historically interprets the threshold for compliance with Part I to be 2% or less, meaning that there can be no more than a 2% variation between the representation of male and female student-athletes in comparison to the overall percentage of male and female undergraduate students who are enrolled full-time. Additional formulas are applied to confirm that substantial proportionality exists.  Given enrollment fluctuations and unforeseen roster changes, compliance with Part I is a tough task requiring constant supervision.

Institutions unable to demonstrate equitable proportionality under Part I will be left with Part II and Part III of the three-part test to demonstrate compliance. Part II of the competition opportunity test assesses whether the institution has a continued history of program expansion for the underrepresented sex. The reclassification or elimination of sports for the over-represented sex, obviously, does not expand opportunities for the under-represented sex. Reclassification or elimination of a sport for the under-represented sex is in direct contradiction to Part II of the three-part test and will most likely eliminate a school from meeting this test. Institutions relying on Part II must be prepared to produce contemporaneous evidence that program expansion was in direct response to the growing interest and abilities of its female students.

Part III of the three-part test for participation opportunities is the most complex. Like Part II, the reclassification or elimination of a varsity sport does not help an institution in demonstrating that it is actively and fully accommodating the interests and abilities of students on campus, as the existence of a varsity sport carries with it a presumption that there is sufficient interest and ability to sponsor the sport at the varsity level. Therefore, institutions who cut sports and rely on Part III to comply must be prepared to demonstrate that the interests and abilities of the underrepresented sex are sufficiently being met by the sport’s sponsorship at a lower level. Relying on Part III requires comprehensive strategic planning involving multiple departments on campus.  It is recommended that institutions anticipating the reclassification or elimination of sports should consult with counsel if it relies on Part III to demonstrate accommodation of interests and abilities under Title IX.

LEAD1 and Jackson Lewis will continue to monitor and update membership regarding any updates on the topic of sports-cutting and Title IX.  Please feel free to contact John Long of Jackson Lewis for advice and counsel related to any component of Title IX – Gender Equity.

Thursday, June 11, 2020

LEAD1 Association Virtual Forum Discusses Getting Back to Business; Reopening Venues

Prepared by LEAD1 Association

Webinar Resources (Recording, Slides, etc.) HERE

On Wednesday, with approximately 850 registrants on its virtual forum, LEAD1 Association (“LEAD1”) hosted a webinar for its member institutions discussing some of the key areas to safely reopen college sports venues when games return this fall. The panel, moderated by Gensler Sports’, Ryan Sickman (who has designed, managed and overseen a number of prominent sports facilities), featured Robert Housman (the former Assistant Director for Strategic Planning for the Clinton Administration), Russ Simons (Managing Partner at Venue Solutions Group) and Drew Martin (Director for External Affairs for the University of Texas at Austin (UT Austin).

Housman, a partner at Regal Decision Systems, Inc., a company that uses simulation modeling to optimize human traffic flow within facilities, opened the panel by showcasing various simulations demonstrating certain mitigation strategies for creating optimal fan traffic flow in stadiums. The simulations were an eye opening glimpse into the new realities for college sports fans in a COVID-19 world. Housman, for example, presented several demonstrations related to possible needed changes with respect to security at entrance points (i.e., social distancing measures) and single directional flowing inside the stadium. Housman also illustrated common situations in stadiums that have historically been “normal” occurrences that may now require changes such as mitigating clusters of people in tunnel spaces, distancing fans in ticketing lines and limiting seating to premium options. The critical point is that every venue will need to be analyzed on a case by case basis and one size will not fit all in terms of strategies for fan traffic management.

Simons then outlined key considerations related to venue sanitation, food service and staff safety and training. First, regarding venue sanitation, Simons recommended that athletics departments examine the Environmental Protection Agency’s (EPA) Emerging Viral Pathogen Guidance, which describes proper disinfectants (e.g., cleaning products) to use for certain types of environments. Simons also recommended ATP testing for bacteria (given that cleaning for bacteria could help cover other types of contamination). In addition, Simons generally highlighted the importance of deep cleaning (i.e., going into smaller areas to clean) and understanding the difference between cleaning and sanitizing (cleaning merely removes debris whereas sanitizing reduces bacteria on surfaces). Second, with respect to food service, Simons described several possible COVID-19 mitigation strategies such as imposing social distancing restrictions on concourses and implementing “cashless” lines as well as grab-and-go food stations (and possibly requiring hand sanitizing at these stations). Simons noted that venue strategies may differ state by state (depending on various state regulations, for example, “cashless” may be illegal in some states). Third, Simons underscored that all athletics staff should be trained specifically for implementing COVID-19 safety procedures.

Finally, Martin emphasized the importance of athletic department internal contingency planning to prepare for all aspects of collegiate life returning. For example, to plan ahead, Martin’s, UT Austin, created various internal committees comprised of senior athletics staff in several areas such as facilities and events and fan and donor engagement (noting that the established committees have followed Centers for Disease Control and Prevention (CDC) and other state and local guidelines). Some of the policies implemented from these groups include procedures for people coming to campus (such as temperature checkpoints, mask requirements and time restrictions for being on campus) as well as certain hygiene procedures for all staff and student-athletes (handwashing, wiping desks and towel usage restrictions). Moreover, to safely engage with fans, UT Austin plans to deploy certain technology, such as mobile ticketing, mobile publications (e.g., digital engagement appearing on phones) and mobile polling during games. All in all, Martin stated that UT Austin will implement an “all-hands-on-deck” approach, which will require all staff to play a critical role in event operations.

For more information, feel free to reach out to our moderator, Ryan Sickman (Gensler Sports) at ryan_sickman@gensler.com or 816-204-1988.

Webinar Resources (Recording, Slides, etc.) HERE

Wednesday, June 10, 2020

Embrace the New Normal:  How College Programs Can Bring Value and Engage Fans During an Uncertain Time

Prepared by: Irwin A. Kishner, Partner; Executive Chairman; Co-Chair, Sports Law Group, Daniel A. Etna, Partner; Co-Chair, Sports Law Group, and Stephen DiMaria, Associate, Herrick Feinstein LLP

The COVID-19 pandemic has generated much uncertainty for collegiate sports and the sports industry generally. This uncertainty must be embraced as the new normal for the foreseeable future. Nimble collegiate athletic programs will seize the opportunity presented by, and address the challenges of operating under, the new normal. Collegiate athletic programs need to assess their existing fan, sponsorship and media relationships and consider alternate ways of maintaining and improving these relationships. Thinking outside of the box is the critical driver of success. The implementation of innovative initiatives will also serve to mitigate the degree of cost-cutting that collegiate athletic programs have undertaken or are facing.

No collegiate athletic program is the same as another program.  The strengths and weaknesses of each collegiate athletic program need to be assessed and thereafter customized alternatives developed. Opportunities abound for collegiate athletic programs to develop alternative advertising, sponsorship and media rights packages, as well as creating new innovative programs targeted to create fan interaction with the team, and its players and coaching staff. These new initiatives can be expected to soften the impact of collegiate athletic programs losing out on traditional revenue streams associated with game day such as ticket sales. Further, while the COVID-19 pandemic will be temporary, the new initiatives need not be.

The absence of fans in stadiums is perhaps the most visceral anticipated change in the way games will be played. Germany’s Bundesliga has resumed the playing of soccer games in empty-stadiums with socially distant goal celebrations and the addition of artificial fan noise from the stands.  One club has taken advantage of the situation with a positive fan-centric measure by allowing fans to take pictures decked out in fan gear and pay a small fee to ensure a seat in the stadium for a cardboard cutout likeness. This move is an interesting prompt on how teams could make use of empty stadiums for creative revenue gain and fan engagement.

Plainly put, empty seats mean more space. Collegiate athletic programs have the ability to fill seating areas with whatever creative ideas they can envision and should consider the advertising potential. Entire seating areas could be wrapped in large advertisements for the team’s biggest sponsors. Without fans in the stands, collegiate athletic programs may also consider expanding advertising on the field through sales of additional real estate for sponsorship space. Programs could also consider putting the names of fans or high-contributing donors on the field in exchange for donations, representatively putting those fans on their field since they cannot be present in the stands. In negotiating media rights for live games in empty stadiums, teams may be able to find additional rights to offer from an empty stadium that they otherwise might not have been able to provide.

Collegiate athletic programs should also consider how they could offer additional luxury or premium experiences. Although the circumstances of a season amidst a pandemic are not ideal, they do result in potentially unique game experiences. Because fans may not fill a large number of seats, allowing the attendance of a few important donors kept in socially distant seating could provide a rare and even historic experience. The ability to be a part of an elite group of spectators in the stands during a game could be attractive to certain donors. Memorabilia from these empty-stadium games also could be a coveted piece of the team’s history that fans could acquire. Luxury or exclusive experiences could also be successful in extending beyond the field, including tours and behind the scenes experiences for small groups or individual donors. Visits to training facilities, locker rooms, or areas of the stadium that are usually closed to fans could engage fans in a new way and provide unprecedented access to the teams. During a time of social distancing, it may even be preferable to provide these tours and behind the scene experiences over social media live platforms or other video broadcasting software because they allow direct connection to the teams and events and ensure that fans do not lose connections with their favorite teams.

Broadcasting live over social media provides a range of opportunities both open to the public for fan engagement and set privately for premium experiences. During the current cancelled or curtailed seasons, professional athletes have taken to social media independently with videos of workouts and untold stories of their experiences, while also appearing on official team feeds for fan-driven discussion. Coaches and teams could provide fans with plenty of engaging content through social media platforms such as Instagram Live to provide behind the scenes footage, live broadcasts from the stands at a game, or sit-down discussions with the players and coaches. These unique new platforms could be sponsored by advertisers to help support the programs. On a smaller scale, using video broadcasting like social media platforms, Zoom, or Skype for private meetings with donors could also result in revenue-generating experiences. Teams could engage small restricted groups for private Q&A sessions with coaches or players, or even for broadcasts from the stands during a game. Personnel involved from professional leagues all the way down to high school sports teams have offered various types of training sessions via video software while social distancing. Schools may want to consider offering an exclusive experience of training with coaches and staff over video that could be accomplished by subscription or one-time enrollment fee.

While the return of sports during this pandemic raises issues, it is a not a question of if live spots will resume, but when and how.  When collegiate athletic events resume, collegiate athletic programs should be ready to offer fans and sponsors opportunities to participate and reconnect through traditional experiences (as tailored for pandemic concerns), as well as new platforms.

Tuesday, June 9, 2020

The Key Role of Safety and Health Plans

Prepared by: Timothy J. O’Brien, Partner Libby O’Brien Kingsley & Champion, LLC

Corporate partnerships represent an important revenue source for sports/entertainment venues and events. But the recent

social distancing guidelines arising from the COVID-19 pandemic threaten to strain those partnerships. From the vendors’ perspective, financial benefits that they expected to receive from sponsoring an event or venue will disappear completely due to event cancellations. And even when the games and events come back, they will almost certainly take a different form than what the vendor expected when it entered into the contract, whether due to lower attendance, aversion to food and beverage stands or otherwise. From the venues’ perspective, not only will they have to navigate lost ticket revenue, they will also face pleas from their vendors seeking to reduce or eliminate guaranteed payments in response to corporate directives to minimize discretionary spending.

While many of these disputes will result in renegotiated contracts, some have resulted in litigation. In one recent filing, the organization that puts on the popular X4 Experience Management Summit (“X4”) conference in Salt Lake City, Utah, preemptively filed a declaratory judgment action against one of their partners that had agreed to secure the participation of the band “The Killers” at the event. See Qualtrics, LLC. v. SME Entertainment Group, LLC., Case No. 20-CV-00164, complaint filed, 2020 WL 1182395 (D. Utah Mar. 12, 2020). The plaintiff cancelled the event, which was scheduled for March 10-13, 2020, in response to the COVID-19 pandemic and state of emergency declaration from the State of Utah. Although many of the X4 vendors seemed to accept the plaintiff’s decision to cancel the event, not so for The Killers. They demanded to perform and be paid. Although the key terms of the parties’ contract were redacted from the complaint, the unredacted allegations indicate that the plaintiff was relying on a provision of the contract that allowed the plaintiff to use its “good faith discretion” in deciding to cancel the event and refuse to pay vendors. The plaintiff voluntarily dismissed the lawsuit before the defendant answered, suggesting that perhaps the defendant recognized that it faced an uphill battle in light of the “good faith discretion” provision.

Declaratory judgment claims like the ones asserted in Qualtrics, LLC will likely be the exception rather than the rule, as most vendors and venues will find renegotiation a more attractive option than litigation. Before any negotiation, however, vendors and venues should analyze how their contracts stand up to scrutiny under relevant state contract law and common law defenses. Performing this analysis on the front end of a negotiation will be useful in evaluating the parties’ respective bargaining positions and provide a leg up if a negotiation takes a turn towards litigation. Some common defenses are described below.

• Force Majeure. Force majeure provisions are common clauses in commercial agreements and are likely to be the hook upon which many parties seeking to avoid contractual obligations hang their hat. These provisions generally create a basis for non-performance (in whole or part) if a party is unable to fulfill its contractual obligations and/or liabilities due to events that are out of their control and that the parties could not reasonably foresee at the time they entered into the contract. But simply having a force majeure provision in a contract does not mean that the provision will apply to COVID-19 or excuse a parties’ performance. The precise wording in the agreement is critical.
• Doctrine of Frustration of Purpose in the Absence of a Force Majeure Clause. Under this common law principle, a party may be discharged from performing a contractual obligation that has been rendered impossible if the party neither assumed the risk of impossibility nor could have acted to prevent the event rendering the performance impossible. Again, whether this defense is available will depend on several factors, including how courts have applied the doctrine (narrowly or broadly) and whether the parties’ performance has been rendered impossible or merely inconvenient or more expensive.
• Doctrine of Supervening Impracticability in the Restatement (Second) of Contracts § 261. In jurisdictions that follow Section 261, when a party’s performance is made impracticable (not impossible) “by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, [their] duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.” Like the doctrine of impossibility, whether the doctrine of impracticability applies will depend on numerous factors.
• Games Not Played / Unavailable Benefits Provision. These provisions address situations where a particular bargained-for benefit is no longer available (e.g. minimum number of home games or concerts) due to circumstances beyond the control of either party. The remedy under these provisions is usually a mutually-agreed upon compensation structure for the lost benefit or a pro-rata reduction rebate.

Ultimately, disputes between venues and vendors will be assessed on a case-by-case basis. Success in negotiations or litigation may depend upon the preparation one has with its attorney prior to taking any defensive or offensive steps.

Tuesday, June 2, 2020

How COVID-19 Is Likely To Strain Sports and Entertainment Partnerships

Prepared by: Brian Lamping, Partner (St. Louis), Bob Wallace Jr., Partner (St. Louis), and Melissa Gold, Associate (Chicago), Thompson Coburn LLP

Corporate partnerships represent an important revenue source for sports/entertainment venues and events. But the recent social distancing guidelines arising from the COVID-19 pandemic threaten to strain those partnerships. From the vendors’ perspective, financial benefits that they expected to receive from sponsoring an event or venue will disappear completely due to event cancellations. And even when the games and events come back, they will almost certainly take a different form than what the vendor expected when it entered into the contract, whether due to lower attendance, aversion to food and beverage stands or otherwise. From the venues’ perspective, not only will they have to navigate lost ticket revenue, they will also face pleas from their vendors seeking to reduce or eliminate guaranteed payments in response to corporate directives to minimize discretionary spending.

While many of these disputes will result in renegotiated contracts, some have resulted in litigation. In one recent filing, the organization that puts on the popular X4 Experience Management Summit (“X4”) conference in Salt Lake City, Utah, preemptively filed a declaratory judgment action against one of their partners that had agreed to secure the participation of the band “The Killers” at the event. See Qualtrics, LLC. v. SME Entertainment Group, LLC., Case No. 20-CV-00164, complaint filed, 2020 WL 1182395 (D. Utah Mar. 12, 2020). The plaintiff cancelled the event, which was scheduled for March 10-13, 2020, in response to the COVID-19 pandemic and state of emergency declaration from the State of Utah. Although many of the X4 vendors seemed to accept the plaintiff’s decision to cancel the event, not so for The Killers. They demanded to perform and be paid. Although the key terms of the parties’ contract were redacted from the complaint, the unredacted allegations indicate that the plaintiff was relying on a provision of the contract that allowed the plaintiff to use its “good faith discretion” in deciding to cancel the event and refuse to pay vendors. The plaintiff voluntarily dismissed the lawsuit before the defendant answered, suggesting that perhaps the defendant recognized that it faced an uphill battle in light of the “good faith discretion” provision.

Declaratory judgment claims like the ones asserted in Qualtrics, LLC will likely be the exception rather than the rule, as most vendors and venues will find renegotiation a more attractive option than litigation. Before any negotiation, however, vendors and venues should analyze how their contracts stand up to scrutiny under relevant state contract law and common law defenses. Performing this analysis on the front end of a negotiation will be useful in evaluating the parties’ respective bargaining positions and provide a leg up if a negotiation takes a turn towards litigation. Some common defenses are described below.

• Force Majeure. Force majeure provisions are common clauses in commercial agreements and are likely to be the hook upon which many parties seeking to avoid contractual obligations hang their hat. These provisions generally create a basis for non-performance (in whole or part) if a party is unable to fulfill its contractual obligations and/or liabilities due to events that are out of their control and that the parties could not reasonably foresee at the time they entered into the contract. But simply having a force majeure provision in a contract does not mean that the provision will apply to COVID-19 or excuse a parties’ performance. The precise wording in the agreement is critical.
• Doctrine of Frustration of Purpose in the Absence of a Force Majeure Clause. Under this common law principle, a party may be discharged from performing a contractual obligation that has been rendered impossible if the party neither assumed the risk of impossibility nor could have acted to prevent the event rendering the performance impossible. Again, whether this defense is available will depend on several factors, including how courts have applied the doctrine (narrowly or broadly) and whether the parties’ performance has been rendered impossible or merely inconvenient or more expensive.
• Doctrine of Supervening Impracticability in the Restatement (Second) of Contracts § 261. In jurisdictions that follow Section 261, when a party’s performance is made impracticable (not impossible) “by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, [their] duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.” Like the doctrine of impossibility, whether the doctrine of impracticability applies will depend on numerous factors.
• Games Not Played / Unavailable Benefits Provision. These provisions address situations where a particular bargained-for benefit is no longer available (e.g. minimum number of home games or concerts) due to circumstances beyond the control of either party. The remedy under these provisions is usually a mutually-agreed upon compensation structure for the lost benefit or a pro-rata reduction rebate.

Ultimately, disputes between venues and vendors will be assessed on a case-by-case basis. Success in negotiations or litigation may depend upon the preparation one has with its attorney prior to taking any defensive or offensive steps.

Monday, June 1, 2020

College Athletes, COVID-19 Exposure, and Potential Liability

Prepared by: Michael R. Phillips, Partner, and David D. Leishman, Senior Counsel, McGuireWoods LLP

The majority of colleges and universities that have announced plans for fall 2020 have announced that they plan to hold in-person classes on campus.  Although the extent to which collegiate athletics will also resume in fall 2020 is still unclear, some athletic directors and school presidents have already announced that athletes will return to campus for team activities as early as this week.  Late this past month, however, NCAA President Mark Emmert opined that the breadth of collegiate sports programs and number of collegiate athletes make it “almost inevitable” that some athletes will contract COVID-19.

In this regard, schools must carefully assess the risk of COVID-19 exposure to athletes, and potential liability as they decide when and how to resume athletic activities.  If athletes become infected, schools may face claims alleging that they failed to take proper precautions to prevent exposure.  Schools have several defenses to such claims, including assumption of risk and waiver, but schools are more likely to avoid liability if they implement specific measures to prevent COVID-19 transmission during athletic practices and competitions.

What duty do schools owe to protect student athletes from COVID-19? While schools do not have a blanket duty to protect their students from all harms, some courts have imposed upon schools a heightened obligation to protect student athletes.  In California, for example, courts have recognized a special relationship, and special duties, between a school and students engaged in activities closely related to the school’s delivery of educational services, and that athletics are such activities. Other courts have recognized that a school owes, at minimum, a duty not to increase the risk of harm to athletes in competition. We are aware of no cases addressing a school’s obligation to protect an athlete from communicable disease, but to avoid COVID-19 liability to athletes the school should be prepared to demonstrate that it took reasonable steps to prevent transmission during athletic events including practices and competitions.

Assumption of risk provides one potential defense to COVID-19 claims by student athletes. Generally, assumption of risk bars liability to athletes for injuries arising from the risks inherent in a sport. For example, schools have successfully raised assumption of risk as a defense where athletes have been injured while sliding into base, tackling in football, or falling during cheerleading routines. Courts have not had an opportunity to determine the extent to which COVID-19 exposure is inherent in athletic practice or competition. Assumption of risk is likely to be a stronger defense in contact sports that, by their nature, preclude social distancing and involve likely exchange of respiratory droplets. Assumption of risk may be a less effective defense in sports such as tennis or fencing, where athletes can maintain separation. In any case, to successfully assert an assumption of risk defense, a school should be able to show that it took reasonable measures to limit potential exposure in its facilities and activities, apart from the exposure inherent in the athletic activity itself.

A valid waiver and release may also provide a defense to COVID-19 claims by student athletes. Schools should update their waiver/release agreement forms to address the risk of communicable diseases such as COVID-19, or require athletes to sign a stand-alone COVID-19 waiver/release. The waiver/release form should also acknowledge that the athlete assumes the risk of contracting COVID-19. As a waiver is generally not effective in cases of aggravated negligence or gross misconduct, the school should – again – be prepared to demonstrate that its efforts to prevent COVID-19 transmission were at least reasonable.

Businesses, like schools, face the challenge of re-opening and resuming operations in a manner that limits potential legal claims for coronavirus exposure. State workers’ compensation remedies generally provide an exclusive remedy for employees sickened at their place of work, but it is generally established that student athletes are not “employees” of their institutions. For example, attempts to hold universities liable for not paying wages to athletes have failed as collegiate athletes are not “employees” of their schools under the Fair Labor Standards Act. The Department of Labor has also indicated that student athletes are not “employees” under the FLSA. So workers’ compensation exclusivity will not protect schools from civil claims by student athletes.

Thus, to limit potential liability and strengthen possible defenses including assumption of risk and waiver, schools should implement specific measures to protect their student athletes from COVID-19 transmission. Guidance from the Centers for Disease Control for business and institutions of higher education, while not specific to student athletes, provides a starting point for possible exposure prevention measures. Such measures will be specific to the school and the activity in question, but may include:

• Frequent COVID-19 testing of athletes, coaches and athletic department staff;
• Check athletes’ temperatures as they enter a facility for practice or competition and do not admit athletes with a temperature of 100.4 degrees or higher;
• Require athletes to check their own temperature at home and certify that they are symptom-free before participating in any practice or competition;
• Provide an avenue for athletes to report COVID-19 symptoms and a response/isolation protocol for such reports;
• Quarantine, testing and contact tracing procedures for athletes or staff members who test positive for COVID-19;
• Develop social distancing protocols for team activities, including practices and meetings, and individual workouts;
• Increased hand hygiene, including installation of hand sanitizer at key facility entry points and education on frequent washing with soap and water for at least 20 seconds;
• Require athletes to wear face coverings at all times, except where the nature of the activity in question renders it impossible (such as while swimming);
• Increase cleaning and sterilizing of locker rooms and equipment;
• Limit access to team showering facilities, or require athletes to shower at home;
• Close saunas, steam rooms, pools and other communal treatment areas;
• Limit sharing of equipment;
• Ensure that each athlete has his or her own water bottle and does not share it with others;
• Discourage high fives, group hugs, and other celebrations involving physical contact;
• Permit athletic department staff to work remotely if possible;
• Limit travel and minimize interaction with other travelers during travel to the extent possible;
• Avoid communal meals especially where food or serving implements will be shared among team members;
• Enforce social distancing requirements outside of athletic facilities and specifically prohibit athletes from high risk environments such as house parties, bars and nightclubs;
• Update waiver/release agreement forms to address COVID-19

For more information on this topic, please contact one of the authors of this article.

Monday, June 1, 2020

LEAD1 Association Virtual Forum Discusses Legal and Cultural Impacts of COVID-19 on College Sports

Prepared by LEAD1 Association

Webinar Recording HERE

On Wednesday, with more than 900 registrants on its virtual forum, LEAD1 Association (“LEAD1”) hosted a webinar for its member institutions discussing the legal and cultural impacts of COVID-19 on college sports. The panel, one of LEAD1’s most illustrious since it started hosting its virtual forums on a regular basis in late March,  featured a current member of Congress, Rep. Donna Shalala (FL-27), a former member, Tom McMillen (LEAD1 President and CEO), Richard Giller (Partner at Pillsbury Law) and Peter Carfagna (Chairman at Magis, LCC and Professor at the University of Miami School of Law).

Giller opened the panel by discussing the impact of event cancellation and business interruption insurance policies on college sports. The key takeaway from this segment is that perhaps now, more than ever, athletics departments, colleges and universities should be more aware of the various circumstances that could shut down business in the United States (e.g., force majeure). To this end, certain types of insurance such as event cancellation (which could cover lost profits, ticket sales, sponsorship revenues etc.) and business interruption insurance (i.e., an insurance claim due to a government mandate) could help mitigate against the effects of future shutdowns.

The core of the webinar, however, focused on the legal implications with respect to the return of college sports. Rep. Shalala urged for a national standard (e.g., at least minimum policies) regarding medical testing and procedures for college sports. In this regard, the panel agreed that there may be certain privacy issues that arise if a student-athlete were to contract COVID-19. While student-athletes likely would be protected under the Americans with Disabilities Act (ADA) (federal law), institutions may not be protected.

The panel also addressed the direct impact of COVID-19 on student-athletes and coaches returning to their sports. For instance, what if a student-athlete is hesitant to play his or her sport until minimum testing and other standards are in place? What if a coach, who has a preexisting medical condition, believes it may be too risky to return? In this vein, because testing regimes are likely to be different across the country, Rep. Shalala recommended that college sports (conferences, institutions and the NCAA), should develop a national standard for meeting certain minimum testing standards (and that there may be the need for different standards based on each particular sport). With respect to the coaching question, while the position of a coach in deciding whether to return (from a business standpoint) would likely depend on the language of his or her contract, there are possible measures, from a health standpoint, that coaches could take to mitigate against the possible risks of returning (such as social distancing from players (i.e., coaching from the press box)).

The panel further discussed various liability protections for athletics departments against the possibility of COVID-19 lawsuits. Given that the United States is the most litigious society in the world, the panel agreed that the possibility of lawsuits in college sports are inevitable. To this end, while the panel reiterated that their recommendations do not constitute “legal advice,” the panel agreed on several practical actions that athletics departments can take to protect against potential lawsuits.

First, athletics departments could, for example, implement various waiver policies such as “assumption of the risk” provisions on the back of game tickets (similar to the measures Major League Baseball (MLB) teams implement on their tickets due to the risks of foul balls). Second, athletics departments should follow any established guidelines (whether developed by the National Foundation for Infectious Diseases (CVC) or through state and local governments); this could, in turn, help athletics departments demonstrate that they have adhered to a certain “duty of care” potentially established in litigation. Third, while there have been federal and state efforts to establish potential safe harbor provisions for colleges and universities from liability due to COVID-19, the other practical recommendation (back to insurance) is that athletics directors, together with inside counsel (and potentially outside counsel) should review their current insurance agreements (and renewal dates for those insurance plans) to determine any potential additional coverages needed.

The panel further highlighted some of the financial implications on the future of college sports.  The panel acknowledged that while playing football (and other college sports) without fans may happen (especially due to the inevitability of lawsuits), smaller schools within LEAD1 that mostly have fewer resources (traditionally known as “Group of Five” schools), particularly rely on live attendance revenues as opposed to “Power Five” schools (larger institutions with traditionally greater resources), which may have more significant television rights agreements. The silver lining, however, depending upon individual schools’ broadcasting agreements, is that their television revenues (and associated revenues such as advertising) may increase due to more fans watching from home. In general, however, all LEAD1 institutions rely on donations and student fees to help provide thousands of opportunities for student-athletes.

Finally, with respect to the cultural impact of the pandemic, varied state regulations could have a tremendous impact on the future of college sports including team travel. The panel also noted that, in the next several years, there could be a decline in youth sports participation and that there may need to be the short term elimination of established college traditions during game day (such as autograph opportunities for fans)

Webinar Recording HERE

Thursday, May 21, 2020

LEAD1 Association Virtual Forum “How COVID-19 Will Change College Sports” Hosts More Than 1,000 Participants

Tuesday, May 19th, 2020

United States Court of Appeals for Ninth Circuit Adds Fuel to Fire for LEAD1 Athletics Departments During COVID-19 Pandemic

Monday, May 18, 2020

New NBA G League Program Begins to Challenge NCAA Men’s Basketball Hold on Top Prospects

Thursday, May 14, 2020

COVID-19 and Title IX: Ramifications of Budget Cuts on Gender Equity

Tuesday, May 12, 2020

Arrington Settlement: Implications for Concussion Policy and Guidelines

The National Collegiate Athletic Association (NCAA) has a pending deadline (May 18, 2020) for member institutions to comply with certification requirements regarding terms for the Arrington class settlement agreement. These requirements are specific to three areas in the management of concussion in the student athlete; return to sport, academic accommodations and instruction and education requirements. NCAA member institutions will be required to have policy and guidelines that are specific to each of these areas. Failure to have adequate policy, guidelines and management plans will increase liability and risk to institutions participating in the settlement.

With respect to the requirements for return to sport following concussion, the following criteria must be met in order for an institution to successfully complete the certification process.

1. Every student athlete must undergo preseason baseline testing for each sport the athlete participates in on an annual basis. This must occur prior to participation in any practice or competition for the year when testing occurs. It is important that each institution is consistent with the method of preseason testing, how this is performed, documented and with compliance regarding this testing in all student athletes.
2. Any student athlete diagnosed with a concussion must be prohibited from returning to play (including all training activity, practice or competition) on the same day the diagnosis of concussion is made. A clear definition of “diagnosis of concussion” must be applied for every athlete evaluated by medical personnel. The removal of an athlete from a practice or game for a suspected concussion may meet this definition.
3. A physician must clear any student athlete diagnosed with a concussion prior to returning to play to include any practice and competition. Protocol for clearance from a physician and a quality assurance mechanism are required to make sure this requirement is met for all athletes returning to practice or game following a concussion. Physician clearance is recommended for BOTH return to practice and game participation.
4. The institution must provide medical personnel with training in the diagnosis, treatment and management of concussion at all games for contact sports (men’s and women’s) to include football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball. Institutions will be required to define “appropriate medical personnel” and “adequate training” as required by the settlement. This includes requirements for certification and recertification by the institution for the requirements of diagnosis, management and treatment of concussion.
5. The institution must provide medical personnel with training in the diagnosis, treatment and management of concussion at all practices for contact sports (men’s and women’s) to include football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball. In addition to the recommendations stated immediately above, institutions will be required to determine what constitutes a practice and will need to provide coverage for ALL practice activities regardless of location (i.e. home or away).
6. The NCAA will be required to provide institutions educational material for faculty regarding academic accommodations for student-athletes that have suffered a concussion. Institutions will need to coordinate the distribution of these materials and compliance from faculty on receiving these materials and being responsible for the content. Institutions will also need to ensure these accommodations are available to student-athletes that sustain a concussion.
7. Institutions will be required to provide annual NCAA approved concussion education and training to their student-athletes, coaches and athletic trainers prior to the beginning of every competitive season. This education requirement is actually extended to strength and conditioning personnel, other medical personnel (team physicians) and athletic administrators via the Inter Association Recommendations for the Prevention of Catastrophic Injury and Death in Collegiate Athletes, which was approved as association wide policy by the NCAA August 1, 2019. Institutions should review this document and ensure all education requirements are met.

The previous requirements are applied for institutions participating in the Arrington settlement at all levels of NCAA competition (1,2 and 3). All certifying institutions must have policy, guidelines and management plans that are specific to these requirements and need to be in place if the institution is certifying compliance as part of the Arrington settlement. These institution specific plans must incorporate best practices regarding the management, diagnosis and treatment of concussion in a student athlete and should be reviewed and monitored at a minimum on an annual basis. Further, it will be imperative that operationalizing the requirements to meet these standards is monitored for compliance on a frequent basis. Quality assurance around these recommendations will be essential to successful implementation, reporting and compliance required by the settlement. Collaboration with external experts in concussion management, athletic healthcare administration, quality assurance, event reporting and athlete safety is recommended to ensure all requirements are accounted for in policies and guidelines. External policy and guideline review, program implementation review and quality assurance review will help institutions reduce risk and liability regarding concussion in the student-athlete that is further amplified by the requirements of the Arrington settlement.

Dr. Borchers is a Sports Medicine physician and an expert in Athletic Healthcare and Safety Administration. He is the President and Co-founder of the U.S. Council for Athletes’ Health (USCAH), an organization that collaborates with institutions and athletic organizations to optimize athletic healthcare and safety assessment, education and programming. To learn more about how USCAH can help institutions with these and other athletic healthcare and safety issues, please contact info@uscah.com.

Thursday, April 30, 2020

LEAD1 Association’s Weekly Virtual “AD Town Hall Series” Discusses Managing in Uncertain Times

Prepared by: LEAD1 Association

On Monday, LEAD1 Association (LEAD1) conducted its weekly virtual “Town Hall” session limited to LEAD1 member athletics directors. The session was led by a panel of LEAD1 athletics directors including Whit Babcock (Virginia Tech), Lisa Campos (University of Texas at San Antonio), Boo Corrigan (North Carolina State University), and Eddie Nuñez (University of New Mexico); the panelists  discussed how they are leading their athletics departments during these challenging times.

In this vein, first, the panel discussed a timeline for football to be played in the fall such as highlighting a general “six-week” period that student-athletes would need to get ready before possibly playing a game. The panel agreed that to start the season as scheduled in early September, a decision for football would likely need to be made in early July.

Second, the panel outlined some of their thoughts with regard to what a possible “new normal” in college sports could look like. For example, based upon recent success with respect to communicating via virtual technology (i.e., Zoom conferencing), athletics departments may continue to rely on such technology in the future, which could change areas like recruiting. In addition, based upon the current financial uncertainty in college sports, athletics departments may be less likely to offer long term contracts in the future and game operations (such as fan engagement and ticket scanning) may also change.

Third, the panel emphasized the importance of maintaining a positive culture even during a time of great uncertainty, for example, by serving as a role model for students-athletes (such as following social distancing rules and attending virtual events on time) and offering virtual professional development opportunities for the entire athletics department (i.e., golf and cooking lessons). The panel further agreed that their individual deputy athletics directors have played an enormous role in helping their athletics departments maintain a positive culture.

Finally, the panelists concluded their conversation by stating the importance of intercollegiate athletics for campuses at large (such as increasing campus enrollment statistics and serving as an outlet for people during hard times).

Thursday, April 30, 2020

Through the Storm: Strategic Planning to Navigate Rough Times

Wednesday, April 29, 2020

LEAD1 Association Holds Financial Sustainability Webinar for Member Athletics Department Staff During COVID-19 Pandemic

 LEAD1 Virtual Forum Library (Recordings) HERE

Tuesday, April 28, 2020

LEAD1 Association Continues Weekly Virtual “LEAD1 AD Town Hall” Series; Panel Discusses Strategies to Survive the Financial Crisis Under COVID-19

Monday, April 27th, 2020

University of South Florida’s Michael Kelly Utilizes Virtual Technology to Engage with Fans and Donors During COVID-19 Pandemic

Wednesday, April 22nd, 2020

Washington AD Jen Cohen Uses “Culture Managers” to Boost Program Morale During COVID-19 Pandemic

Monday, April 20th, 2020

How College Football Navigated The Spanish Flu

The background of the Spanish flu in the United States

The impacts of the Spanish flu on college football

What can 1918 tell us about how 2020 might play out on the field?

Thursday, April 16th, 2020

65 Years Since the University of Pittsburgh Developed the Polio Vaccine, Pitt AD Heather Lyke Creates Program to Help Care For Pittsburgh Healthcare Workers Fighting COVID-19 

Wednesday, April 15th, 2020

Approximately 500 Athletics Department Staff Attend LEAD1 Association’s Virtual Webinar Discussing Compliance in a NIL World 

Tuesday, April 14th, 2020

New Mexico’s Eddie Nuñez Launches Engagement Programs to Help Community During COVID-19 Crisis 

Monday, April 13th, 2020

COVID-19 AND SPORTS SPONSORSHIP CONTRACTS

Thursday, April 9th, 2020

Mobilizing From a Distance; Ohio University’s Julie Cromer Arranges Virtual Meals for Student-Athletes During Turbulent Time 

Wednesday, April 8th, 2020

NCAA Compliance Best Practices for Institutions During COVID-19 Pandemic 

Monday, April 6th, 2020

LEAD1 Association Continues Weekly Virtual “LEAD1 AD Town Hall Series” During COVID-19 Pandemic; Panel Discusses LEAD1’s Nationwide Survey

Thursday, April 2nd, 2020

Student-Athletes, Mental Health, Money and Loss During a Pandemic: One Way to Help 

Wednesday, April 1st, 2020

Potentially Big Opportunities For Universities and Athletics Departments Under Emergency-Relief Package

Monday, March 30th, 2020

LEAD1 Association Kicks off Weekly Virtual “LEAD1 AD Town Hall Series” During COVID-19 Pandemic

Friday, March 27th, 2020

Small Businesses, Including Non-Profits, Offered Unprecedented Liquidity by Congress in Coronavirus Bill Relief

Friday, March 27th, 2020

LEAD1 Association Holds Medical Management in Athletics Webinar with Member Athletics Departments

Thursday, March 26th, 2020

U.S. Senate Passes Emergency-Relief Package to Help Americans Survive the Coronavirus Pandemic; Aid for LEAD1 Institutions Included

Tuesday, March 24th, 2020

Six Tips to Address COVID-19 Within Athletic Medicine 

1. Identify the impact of social distancing for athletic institutions:  We are now all encouraged to abide by new thoughts around social distancing, in both our personal and professional lives. There are some very specific areas associated with athletic medicine that need to be considered and where changes must take place.
   • Hot and cold tubs: There is now, more than ever, the need for individualized delivery of these services and more frequent cleaning and sanitization of these modalities.
   • Potential overcrowding in training and locker room facilities:  With the suggestion to reduce the frequency of visits to health care facilities and provide adequate space for patients and athletes to function while maintaining social distancing, we need to think about when and how teams visit facilities and how much space is offered in locker room facilities – especially visiting locker room facilities (i.e. FB and Lacrosse), for example.
   • Travel restrictions:  Areas for consideration include the number of people traveling and also the spacing available on busses and planes.
2. Address athlete personal health and hygiene:  There is clear evidence that personal health and hygiene are the number one preventative factors for reducing the risk of infection and spread from an infection like COVID-19.
   • Shared items:  This includes issues like not sharing towels and water bottles during training, practices, and games.
   • Staff Protection:  Recognize the need for continued use for protective equipment like gloves, face masks, and shields with your staff and athletes when appropriate.
   • Individual Health: Athletic institutions also need to prioritize proper rest, sleep, nutrition, activity periodization, and planning for athletes during this time.
   • Facilities:  We also need to consider all training room facilities as healthcare facilities, and as such, will need to be held to the same standards as our medical facilities as far as quality assurance and appropriate protocols.
3. Consider new models of athletic healthcare delivery:  With the rapid increase of virtual health options, such as virtual visits and telehealth, athletic institutions will need to introduce similar options to ensure sick athletes are not coming to training room facilities until screened. Try to manage as many issues remotely now, when possible.
   • Athletes: Athletes will need options for simple follow-ups to be completed in virtual domains.
   • Records access: Electronic medical records provides us the virtual domain to allow us to do all of these things, but this will be a change in practice for all of us.
   • Staffing:  Additionally, consider limiting the number of healthcare personnel in a room or involved in an athlete’s care; the training of students, residents, fellows, etc. is going to change going forward and athletic organizations will need to adapt to those changes.
4. Coordinate sport performance, health and safety:  Collectively, there will be an added emphasis on evidence-based practice with Sport Performance personnel—Strength and Conditioning, Nutrition and Sports Science. We are already seeing concern regarding return to training and sport activity in the Athletic Medicine communities.
   • Athletic Administrators:  Athletic administrators will need to consider further multi-disciplinary cooperation within athletic medicine and sport performance providers.
   • Coaches:  Collaboration with sport specific coaches, administration, sports medicine and sport performance personnel is needed to ensure training and sport-specific activities are coordinated with health and safety best practices.
   • Athletic Medicine: Athletic Medicine staff will serve as the coordinators of best practice with respect to athlete health, wellness and safety for student athletes.
5. Shift from individualized healthcare to community-based health care:  Athletic institutions will inevitably be making more decisions in the future regarding the health and safety not only of individuals but also communities, including teams.  Considerations for community-based decisions include:
   • Excluding athletes with fever from traveling with their team
   • Preventing athletes and teams from traveling to areas with higher issues of disease burden
   • Increasing focus on visiting teams and their overall health
   • Identifying recent illnesses that could put your teams and communities at risk.
   • Considering how your team will interact in facilities with each other—from lifting to eating.
6. Increase focus on health and safety:  The increased focus on health and safety will become a growing focus for athletic venues, competitions, practices, personnel, and athletes. What was previously a consideration will now become a significant priority for all of these areas. This shift will force athletic organizations at all levels to consider personnel and roles, utilize skill sets to their fullest potential, and consider a true transformation to deliver on the issues above. Initiate these discussions and the changes that are coming in the post-COVID-19 athletics culture with your staff, athletes, and institution stakeholders.

Monday, March 23rd, 2020

Untold Athletes Project – Spreading Inspiring Stories

Thursday, March 19th, 2020

Five Tips to Help Minimize or Eliminate Reputational and Economic Disruptions Caused by COVID-19

Wednesday, March 18th, 2020

LEAD1 Association Holds Knowledge-Sharing Conference Call with NCAA’s Dr. Brian Hainline and Member Athletics Directors 

Tuesday, March 17th, 2020

NCAA Business Update to LEAD1 Membership

Monday, March 16th, 2020

Keep in Perspective

Major sports disruptions have occurred previously in American history. In World War I, the Olympic games were canceled and Major League Baseball shortened its season. During the Spanish influenza pandemic in 1918, most of the country’s college football games were canceled.  And in World War II, the summer and winter Olympics were canceled. Upwards of 350 universities suspended football until the war was over.

Big Question: How Long Will This Disruption Last?

Dr. Anthony Fauci, one of the nation’s leading experts on pandemics, said Friday that “disruptions to everyday life in the U.S. could last up to another eight weeks.”

Several cities and states have banned large gatherings, closed schools, sporting events, subways, restaurants, and bars, and businesses are requiring their workers to stay at home. Americans are generally being encouraged to limit their movements to slow the spread of the Coronavirus.

Dr. Fauci said on ABC’s “Good Morning America,” “if you look at this historically, how these things work, it’ll likely be anywhere from a few weeks up to eight weeks or more,” adding that he hopes it’s going to be only two, three or four weeks.

So-called “social distancing” measures are crucial to slowing the spread of the Coronavirus and ensuring that hospitals are not overwhelmed by an influx of patients. Dr. Fauci said the “U.S. had not peaked yet in terms of the number of cases.”

Asked if the U.S. is heading toward a gradual shutdown of most businesses, Fauci replied: “I’m not sure we’re going to get to that. I think that would be rather dramatic, but I can tell you that all things are on the table. We have to respond as things evolve over the days and the weeks.”

However, there are reasons to be reassured coming out of China, specifically in Wuhan, the epicenter of the outbreak. (See CNN story below.)

Over the weekend, in a sign of an improving situation in Wuhan, China, the last two of 16 temporary hospitals built to help Coronavirus patients were shut down. The previous patients were discharged to cheers from onlookers as containment measures put in place appear to be working well to curb the spread of the virus.

As you can see from the chart below, on February 12, over 13,000 cases were reported that day. Now, nearly six weeks later, daily new case levels have dramatically dropped to less than ten a day. Eight were reported last Friday. The city of Wuhan has been on lockdown for almost sixty days now.  The encouraging news is that the first death occurred in China on January 11 and it seems the crisis has abated in 3 months or so.

In his comments above, Dr. Fauci said he expects the cycle to play out similarly here in the United States and that our lives could return to normal in six to eight weeks.

CNN STORY (LINK)

China is lifting travel restrictions and life is returning to normal.

Life in China is beginning to return to normal now that the coronavirus outbreak has largely been contained across the country, with lockdowns lifting and employees returning to work.

China only reported 20 new cases today — a drastic drop from just a few weeks ago, when the country was recording thousands of new infections a day.

The new cases are no longer spread out across the country — now, new cases are mostly either imported from international travelers or concentrated in Hubei Province, the epicenter of the outbreak.

Domestic travel is resuming: During the worst of the outbreak, 1,119 highway entrances and exits across the country were closed. Now, all but two have reopened, according to state media outlet Xinhua.

Hundreds of previously-closed roads in counties, towns, and provinces have also reopened. The national road network is “basically running normally,” and 28 provinces have resumed inter-provincial travel, Xinhua reported.

Of 12,028 health and quarantine stations set up on highways, 11,198 have been removed. This is a huge contrast to February. Just a month ago, much of China was essentially locked down. Many residents weren’t allowed to leave their apartment complexes, let alone the city. Some stayed indoors for weeks on end.

Even within cities, public transport was restricted; in Wuhan and other locked-down cities, subway trains were halted and most taxis suspended, with only a small number of government-issued shuttles and cars operating.