by M. Max Sternberg
1. Introduction
On August 11, 2020, and after months of speculation, the Big Ten Conference canceled all fall sports, including football, due to safety concerns in light of the COVID-19 pandemic.[1] Later that same day, the Pac-12 Conference followed suit and also canceled all fall sports.[2] However, on September 16, the Big Ten reversed course and announced that it will in fact have a football season starting October 24, 2020.[3] Furthermore, on September 24, the Pac-12 decided to play a seven game conference only football season starting November 6.[4] As a result, only three (3) schools in the Division 1 Football Bowl Subdivision have canceled the season outright.[5] Canceling the college football season presents new and unique legal questions for those conferences and schools that do not play football, and for the NCAA as well.[6] Alternatively, the conferences and schools that do play football will face their own set of challenges. What’s more, the situation surrounding the decision to play or not to play is constantly changing. Since the first draft of this post, the Big Ten and the Pac-12 have both reinstated football.[7] In light of this evolving situation, and in hopes of providing some clarity, this blog post will address some of the new legal issues raised by either playing or not playing college sports this fall, particularly college football.
In response to the Big Ten’s cancelation of their 2020 college football season, players in the conference have already filed suit contesting that decision.[8] In a suit by a group of eight football players from the University of Nebraska, the players claimed a number of injuries that they would sustain if they were not allowed to play football this fall.[9]
Further, schools that do not play college football this fall will take away opportunities from their student-athletes. By not holding a football season, student-athletes besides football players will also be deprived of opportunities to play their respective sports due to a lack of funding.[10] Most college athletic departments rely on football revenues in order to operate and fund other sports programs.[11] By cancelling the 2020 college football season and possibly having to cut other athletic programs, schools and conferences that do not play football might face a new wave of liability from players who feel that they have been unjustly deprived of a season of playing.[12]
Conferences and schools that do play football might face liability from both players and fans for a totally different type of reason.[13] If a player contracts COVID-19 while playing a game and dies or becomes seriously ill, who will be liable for his injury?[14] If fans contract COVID-19 while attending a game and dies or become seriously ill, who will be liable for their injuries?[15] Liability waivers may be the solution to these questions, but this raises the issue of their enforceability in the context of COVID-19.[16] In all, there are a host of unprecedented legal issues that conferences must address whether they decide to play or not.
2. Legal Issues of Not Playing
The first issue that conferences and schools that cancel football this fall face is the potential of lawsuits from the players themselves.[17] Already, eight football players from the University of Nebraska sued the Big Ten on August 27th, 2020.[18] These players asked the court to issue a temporary injunction and a permanent injunction against the Big Ten’s vote to cancel the 2020 fall football season, to declare the vote invalid due to the Big Ten’s alleged violation of the league’s bylaws and handbook, or “Governing Documents” according to the plaintiffs, in reaching the cancelation decision, and to award nominal damages for tortious interference and breach of contract.[19] This case seeks injunctive relief that would allow the players to play football this fall; however, if players are not allowed to play, many more lawsuits may arise for monetary damages based on the players’ lost opportunities to “develop their brand”[20] and essentially try out for professional football.[21] As the Big Ten has decided to play football this fall, this lawsuit is now moot.[22] However, the claim that likely would have been most successful was the breach-of-contract claim, which alleged a violation of the Big Ten’s bylaws when deciding to cancel the football season.[23]
Although the football players were not a party to the contract between Nebraska and the Big Ten, they qualified as third-party beneficiaries under the Governing Documents of the Big Ten.[24] A third-party beneficiary is “someone who, though not a party to a contract, stands to benefit from the contract’s performance.”[25] As they were third-party beneficiaries, the complainants had certain rights under the contract between the University of Nebraska and the Big Ten Conference, most notably being the ability to play college football in a prestigious conference and all the exposure which it entails.[26] The Big Ten allegedly came to the decision to cancel the football season without the requisite number of votes, as set out in the Governing Documents.[27] This allegedly improper vote deprived the student-athletes of their benefit of playing football and their right to expect that the Big Ten would follow its own bylaws. Thus, it could be argued that the Big Ten acted in an arbitrary and capricious manner and violated the implied covenant of good faith and fair dealing.[28] Courts, however, “are reluctant to intervene, except on the most limited grounds, in the internal affairs of voluntary associations.”[29] According to some presidents of schools in the Big Ten, there was no actual “vote, per se;” instead, there was more of “a consensus than a vote.”[30] If this is true, and there was actually no vote, then it seems that a court would not be reluctant to intervene, as such an action would likely violate the implied duty of good faith and fair dealing.[31]
Further, not holding a college football season may have other deleterious effects on schools that decide as much. For example, the Big Ten’s most profitable football program, The University of Michigan, made $122 million in revenue in 2019.[32] Michigan’s athletic department made $197 million in total revenue for the same year, with total expenses of $190 million.[33] Michigan’s average three-year profit from football is around $83 million.[34] Given the above figures, it is clear that without a football season this fall, it is likely that Michigan’s athletic department would be running a deficit.[35] Presumably other sport programs and teams would need to be cut or suspended to lower the costs of running an athletic department that heavily relies on revenue produced by the football program.[36] In general, college football pays for the modern college athletic system, and thus, a direct consequence of canceling the football season is the deprivation of other opportunities for student-athletes involved in sports other than football.[37]
The cutting of other sports programs, in turn, could lead to more breach-of-contract suits by scholarship athletes from those canceled programs.[38] However, it would be unlikely that such lawsuits would be successful, as most schools would simply terminate the sport and not the scholarship, which would allow the athlete to finish his or her education—thereby fulfilling the purpose of the scholarship contract.[39] Additionally, courts have been fairly consistent in ruling that injuries to a student-athlete’s professional prospects, assuming he or she has the ability to go to a professional league, are too speculative to recover.[40]
3. Legal Issues of Playing
Conferences and schools that decide to play football this fall face numerous legal issues as well. For instance, a non-playing school does not need to worry about a fan contracting COVID-19 at a game; however, schools that do play football face such a risk. To address this concern, some conferences have released health and safety guidelines for member schools to abide by if they choose to have fans in attendance.[41] Although the guidelines may lower the risk of transmission of the virus, these guidelines will not stop lawsuits in the event COVID-19 seriously injures or kills a fan after contracting it at a game.[42] Similarly, if a player contracts COVID-19 during a game or a team activity and subsequently falls seriously ill or even dies, the school may face lawsuits from the player and his family.[43]
One solution for schools to address this form of liability would be to require liability waivers for fans and players alike.[44] However, there are many issues with this solution.[45] First, the NCAA has stated that schools cannot require players to waive their rights regarding COVID-19 as a condition to playing, as this could encourage unequal bargaining power and undue influence claims on behalf of the players against their respective schools, as well as bring up capacity questions for players under the age of majority.[46] Thus, liability to players for complications resulting from COVID-19 is probably the most significant issue that schools playing football this fall will face.[47] Even if liability waivers were effective, such waivers would not be a one-size-fits-all remedy due to the difference in state’s interpretation of such waivers.[48] Therefore, the NCAA barring the use of them as a condition to playing football would not absolve all schools that plan to play football from future liability.[49]
Regarding fan waivers, the major issue that schools and conferences face is that each state tends to treat liability waivers differently.[50] For instance, in Texas, liability waivers are enforceable so long as the release meets the requirements of being express and conspicuous.[51] In contrast, liability waivers in Louisiana are unenforceable to the extent they purport to limit liability for intentional acts or gross negligence.[52] They are also unenforceable for limiting physical injury in advance, and a case of COVID-19 seems like a physical injury.[53]
Because there are diverse rules for liability waivers, there cannot be a uniform solution for fan attendance across the board.[54] For Texas A&M, for example, a liability release on the back of the ticket would likely be enough to limit the school’s liability if a fan caught COVID-19 while at a game at Kyle Field.[55] However, a liability release on the back of the ticket would not be enough to limit LSU’s liability for a fan contracting COVID-19 while in Tiger Stadium.[56] Even if liability waivers do not work for LSU, potential claimants who “contracted COVID-19” at the game would have the very difficult burden of proving a causal relationship between contracting the virus and proving they contracted it while in attendance at the game.[57]
4. Conclusion
There are few simple answers to any of the novel questions presented by COVID-19. This especially applies to the fall 2020 college football season and collegiate sports in the upcoming year. There are far more issues that sports in the era of COVID-19 era will raise, such as television rights, force majeure clauses and how they apply to said television rights, and the possibility of a delayed season in the winter or spring of 2021, to name a few. What is readily apparent is that there will be far-reaching legal consequences for both conferences and schools that play football this fall and for those that do not.[58]
[1] Dennis Dodd & Adam Silverstein, Big Ten cancels college football season for fall 2020, hopes to play in spring 2021, CBS Sports (Aug. 11, 2020, 3:25 PM), https://www.cbssports.com/college-football/news/big-ten-cancels-college-football-season-for-fall-2020-hopes-to-play-in-spring-2021/ [https://perma.cc/9Q4Y-WZP5].
[2] Pac-12 Conference, Pac-12 Conference postpones all sport competitions through end of calendar year, PAC-12 (Aug. 11, 2020), https://pac-12.com/article/2020/08/11/pac-12-conference-postpones-all-sport-competitions-through-end-calendar-year [https://perma.cc/J9SC-BQGL].
[3] The Big Ten Conference Adopts Stringent Medical Protocols; Football Season to Resume October 23-24, 2020, Bigten (Sept. 16, 2020), https://bigten.org/news/2020/9/16/the-big-ten-conference-adopts-stringent-medical-protocols-football-season-to-resume-october-23-24-2020.aspx [https://perma.cc/A2J8-RF93].
[4] Kyle Bonagura & Heather Dinich, Pac-12 to play seven-game football slate starting in November, ESPN (Sept. 24, 2020), https://www.espn.com/college-football/story/_/id/29964509/source-pac-12-play-seven-game-slate-starting-november [https://perma.cc/WKU9-ZFBN].
[5] Steven Lassan, College Football Teams That Have Canceled Their 2020 Season, Athlon Sports (Sept. 27, 2020), https://athlonsports.com/college-football/college-football-teams-canceled-their-2020-season-fbs [https://perma.cc/FE88-6C7N].
[6] See infra Part II, III.
[7] See supra note 3, 4.
[8] Complaint, Snodgrass v. The Big Ten Conference, Inc., No. CI20-3086 (District Court of Lancaster County, Neb.), available at https://www.courthousenews.com/wp-content/uploads/2020/08/UnivNebBig10-COMPLAINT.pdf [https://perma.cc/LN9Z-Q3BN].
[9] See id.
[10] See Jabari Young, The Big Ten’s college football postponement puts more than $700 million at risk this fall, CNBC (Aug. 12, 2020, 3:19 PM), https://www.cnbc.com/2020/08/12/football-big-ten-700-million-revenue-ncaa-pac-12.html [https://perma.cc/Y77R-ZNX2]; Mark Schlabach & Paula Lavigne, Financial toll of coronavirus could cost college football at least $4 billion, ESPN (May 5, 2020), https://www.espn.com/college-sports/story/_/id/29198526/college-football-return-key-athletic-departments-deal-financial-wreckage-due-coronavirus-pandemic [https://perma.cc/U5BT-3ZUB].
[11] See id.
[12] See Schlabach, supra note 10.
[13] See Emily Giambalvo, If College Football Players Have Complications from Coronavirus, Expect Lawsuits to Follow, Washington Post (Aug. 17, 2020), https://www.washingtonpost.com/sports/2020/08/17/if-college-football-players-have-complications-coronavirus-expect-lawsuits-follow/ [https://perma.cc/Q9N7-YWDS].
[14] See id.
[15] See SEC Staff, SEC Announces Fan Health and Safety Guidelines, SECSport (Aug. 18, 2020), https://www.secsports.com/article/29684002/sec-announces-fan-health-safety-guidelines?_ga=2.116112261.2015963497.1599333519-2107659490.1599174311 [https://perma.cc/9XHU-72RC].
[16] See Mark Schofield, Why COVID-19 Liability Waivers Will Not Save College Football in 2020, USA Today Sports (Aug. 11, 2020), https://touchdownwire.usatoday.com/lists/why-covid-19-liability-waivers-will-not-save-college-football-in-2020/ [https://perma.cc/HWF5-CG6T].
[17] See Complaint, supra note 8.
[18] See id.
[19] See id.
[20] To “develop their brand” means to “set [the players] up to market their name/image/likeness under recent changes in Nebraska law.” Id. at 6–7.
[21] See id.
[22] See The Big Ten Conference Adopts Stringent Medical Protocols, supra note 3.
[23] See Complaint, supra note 8, at 9–11.
[24] See id. at 9.
[25] Beneficiary, Black’s Law Dictionary (11th ed. 2019).
[26] See Complaint, supra note 8, at 9–11.
[27] See id. at 11.
[28] See id. at 9–11.
[29] See Bloom v. Nat’l Collegiate Athletic Ass’n., 93 P.3d 621, 624 (Colo. App. 2004).
[30] See Tony Paul, Big Ten Says There was 11-3 Vote, Which Conflicts with What Some Presidents Say, Detroit News (Aug. 31, 2020), https://www.detroitnews.com/story/sports/college/2020/08/31/big-ten-says-there-11-3-vote-which-conflicts-what-presidents-say/3451497001/ [https://perma.cc/8ZBC-BR5W].
[31] See Oliver v. Nat’l. Collegiate Athletic Ass’n., 920 N.E.2d 203 (Ohio Ct. Cm. Pls. 2009); Bloom, 93 P.3d at 621.
[32] See Adam Prescott, What’s the Cost of Not Playing? Financial Impact of College Football Revenue at Big Ten Schools, Sports Illustrated (Aug.16, 2020), https://www.si.com/college/ohiostate/news/football-revenue-big-ten-schools [https://perma.cc/XMM8-QJFM].
[33] See id.
[34] See Chris Smith, College Football’s Most Valuable Teams, Forbes (Sept. 12, 2019), https://www.forbes.com/sites/chrissmith/2019/09/12/college-football-most-valuable-clemson-texas-am/#6200f770a2e7 [https://perma.cc/AEU2-BYTL].
[35] See Schlabach, supra note 10.
[36] See Nathan Baird, If There’s no Football, will Ohio State Have to Cut Sports?, Statesman (Jul. 24, 2020), https://www.statesman.com/sports/20200724/if-therersquos-no-football-will-ohio-state-have-to-cut-sports [https://perma.cc/W3TU-6ZV2].
[37] See Schlabach, supra note 10.
[38] See Complaint, supra note 8.
[39] See McAdoo v. University of North Carolina, 736 S.E.2d 811 (N.C. Ct. App. 2013).
[40] See id.
[41] See SEC Staff, supra note 15.
[42] See Risky Business: Waivers & Assumption of the Risk of COVID-19 Exposure, ClearyGottlieb (May 28, 2020), https://www.clearygottlieb.com/-/media/files/alert-memos-2020/risky-business–waivers-and-assumption-of-the-risk-of-covid.pdf [https://perma.cc/2L4W-V4YL].
[43] See Chris Perkins, Is UM Exposing Itself to COVID-19 Litigation? Heck Yes! (And Heck No)!, Sports Illustrated (Sept. 4, 2020), https://www.si.com/college/miami/football/um-sovereign-immunity [https://perma.cc/D953-JSKR].
[44] See Risky Business: Waivers & Assumption of the Risk of COVID-19 Exposure, supra note 42.
[45] See Board Directs Each Division to Safeguard Student-Athletes Well-Being, Scholarships, and Eligibility, NCAA (Aug. 5, 2020), https://www.ncaa.org/about/resources/media-center/news/board-directs-each-division-safeguard-student-athlete-well-being-scholarships-and-eligibility [https://perma.cc/9QNQ-F2XE].
[46] See id.
[47] See Giambalvo, supra note 13.
[48] See Schofield, supra note 16.
[49] See id.
[50] See id.
[51] See Staton Holdings, Inc. v. Tatum, L.L.C., 345 S.W.3d 729, 734 (Tex. Ct. App. 2011).
[52] See La. Civ. Code art. 2004 (2018).
[53] See id.
[54] See Schofield, supra note 16.
[55] See Staton Holdings, 345 S.W.3d at 734.
[56] See La Civ. Code art. 2004.
[57] See Risky Business: Waivers & Assumption of the Risk of COVID-19 Exposure, supra note 42.
[58] See supra Part I, II, III.