Earlier this month, the NCAA’s Board of Governors bluntly forbid member schools from requiring student-athletes “to waive their legal rights regarding COVID-19 as a condition of athletics participation.” The prohibition came at the urging of many politicians, educators, health care professionals and attorneys, who all insist that college athletes signing COVID-19 liability waivers constitutes an unethical, if not unlawful, bargain.
A prominent sports attorney, Tom Mars, however, flatly disagrees. And he is doing something about it.
As first reported by Sports Illustrated’s Pat Forde, Mars is attempting to help college athletes play this fall by offering a plan that would make COVID-19 waivers explicitly legal. The plan—dubbed the “Freedom of Choice for Student-Athletes Initiative”—rejects what Mars derides as a “paternalistic” dismissal of college athlete autonomy. Mars, who has represented dozens of college athletes in eligibility cases, contends that if athletes wish to play, they should not be denied the chance.
“The issue here is all about freedom of choice,” Mars explains in an interview with Sportico. “If a student-athlete can enlist in the military without getting approval from the NCAA, with the risk of death or serious injury being so obvious, why shouldn’t a student-athlete be free to sign a liability waiver and accept the risks of virus-related health problems?”
Mars believes the NCAA’s decision to foreclose waivers is consistent with an ideology that currently disallows players from licensing their names, images and likenesses. College athletes, Mars says, are often “pawns in an industry that profits off their talent and efforts.”
There is no shortage of college athletes who agree with Mars’s plan. One is an influential former client: Ohio State quarterback Justin Fields, whom Mars represented in his transfer from Georgia and who projects to be a top pick in the 2021 NFL Draft. Fields has launched a MoveOn.org #WeWantToPlay petition, directed at Big Ten commissioner Kevin Warren, as well as other conference presidents and athletic directors. Last week the Big Ten canceled fall sports. As of this writing, Fields’s petition has more than 255,000 signatures.
At the same time, medical experts advising the NCAA have warned of the risks of playing and urged that college sports be put on hold. While COVID-19 appears to present a low risk of serious illness to college athletes, who are young and usually in top shape, there is a secondary risk that players will infect more vulnerable populations.
Sportico has closely covered COVID-19 waivers for athletes. The legality of waivers, also known as exculpatory clauses, is a state-by-state topic. Under the laws of some states, such as Virginia and Louisiana, waivers are often unenforceable. Many states also closely scrutinize waivers and narrowly construe them. Even where waivers are generally enforceable, courts may have reservations about them for a novel infectious disease that, for some, could cause long-term effects. Can a person knowingly agree to relinquish rights for a risk that can’t yet be fully known?
Many colleges have nonetheless required waivers of students. Some schools, such as SMU, required them specifically of student-athletes, only to later drop this condition. Schools fear possible liability if campuses become COVID-19 hot spots.
Waivers or not, it remains to be seen if colleges will be held liable for COVID-19 harms. Schools that adopt reasonable safeguards in line with industry standards could credibly argue they are not negligent. Proof of negligence requires evidence of unreasonable acts or omissions; a student or athlete becoming infected while on campus wouldn’t, by itself, prove the school broke the law. Along those lines, it’s unclear how a person with COVID-19 can establish, with certainty, how they were infected or the school’s possible role. Even where enforceable, then, a waiver might not be needed.
Still, the plan offered by Mars is designed to give schools more confidence that they can play with a tolerable risk of liability. The plan does so in a few ways.
Mars first tackles the patchwork problem of states featuring different waiver laws, which creates uncertainty for schools as they play games in different states. Mars contends this is a surmountable obstacle. State legislatures, the plan stresses, “have the ability to convene outside of a regular session and pass emergency legislation.” He urges legislatures to explicitly authorize waivers for college athletes, if necessary.
Second, the plan encourages the key stakeholders—players, parents, coaches, university presidents and conference commissioners—to assertively petition the NCAA’s Board of Governors to rescind the waiver ban. With enough pressure, Mars reasons, the Board would relent.
Third, the plan advises schools to retain local counsel to draft a COVID-19 waiver that would offer the following terms:
♦ Players read “plainly and thoroughly” explained information about all known risks and potential long-term effects.
♦ Players agree to knowingly assume risks of infection and consequences.
♦ Players disavow any reliance on statements made by the school or its representatives (the player’s understanding with the school is therefore limited to the written waiver).
♦ Players are ensured their athletic scholarships and other benefits are preserved.
♦ Players can retain legal counsel to review.
♦ Potential school liability for negligence—meaning, a failure to provide reasonable care—is limited or extinguished; schools, however, could still be held liable for reckless conduct.
♦ Any disputes go to mandatory arbitration (as opposed to court).
♦ Players (and also parents, if players are minors) must sign; signing must be witnessed by a notary public.
Mars concedes his plan faces hurdles. First, campuses could be shut down due to a worsening pandemic. While Mars stresses he is “not expressing an opinion about whether it makes sense for schools to have students on campus,” he asks: “Who is safer on campus right now—student-athletes in a relatively controlled environment or the students in frats and sororities in these photos we’ve all seen, who think it’s not cool to wear a mask and social distance?”
Second, college football might not be played this fall. For now, the Big 12, SEC and ACC are all proceeding with reduced schedules. But like many industries impacted by the COVID-19 pandemic, college football is in a fluid situation. If games aren’t played, the subject of waivers would likely be punted to the spring or beyond.
Whether for now or later, Mars insists that his plan makes sense. Most college athletes are adults and are thus old enough to make important decisions that affect them and others. As Mars observes, they can join the armed forces and, as a result, risk their lives and those around them. They can also: marry and raise children; serve on a jury and decide a person’s guilt or innocence; and consent to take a vaccine without parental approval. Further, college athletes accept risks of serious head trauma and other bodily injuries on every play, as well as risks of contracting Pneumonia, measles, the flu and other infections from their classmates, teammates and coaches. Does COVID-19 warrant a different approach?
Mars says he has shared his plan with D-I players and parents, and the reaction has been positive. While some parents were skeptical of earlier efforts by schools—such as Ohio State’s much criticized “Buckeye Pledge”—they now, Mars contends, support a full-blown, plainly worded waiver that gives their children a chance to play.
Will the plan go into effect? Mars hopes so but is realistic about the situation.
“If campuses start shutting down because of widespread outbreaks among the faculty and student population,” he said, “it really won’t matter what any commissioner decided to do about college football.”