- Tom McMillen, President and CEO, LEAD1 Association
- Donna Shalala, U.S. Representative for Florida’s 27th District
- Richard Giller, Partner – Insurance & Recovery, Pillsbury Law
- Peter Carfagna, Chairman & CEO, Magis, LLC & Professor and Co-Director (EASL Sports Law Track), University of Miami School of Law
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).