As universities wrestle with the decision to play sports during the pandemic, a grim question lingers: Could a college athlete or coach die from COVID-19?
It’s a question on the minds of many in college athletics, even if they’re not publicly discussing the worst-case scenario, and a central focus of the growing drumbeat for schools to reconsider fall competitions. Some smaller conferences, like the Ivy League and Patriot League, have already decided to cancel their entire fall sports calendar. “We are entrusted to create and maintain an educational environment that is guided by health and safety considerations,” the Ivy League presidents said in a statement. “There can be no greater responsibility—and that is the basis for this difficult decision.”
In college football’s top tier, where the sport brings in billions each year, the response has been a bit different. Those schools still say they’re planning to play fall sports in some capacity, despite the fact that the virus has shown up on virtually every campus. At Clemson, for example, at least 37 football players (nearly a third of the team) tested positive for COVID-19 at workouts, and many schools have had to pause their offseason programs because of similar numbers. Schools including Southern Methodist and Ohio State have had athletes sign waivers acknowledging the risks before they returned to campus.
The scale of college sports makes the health concerns even greater. There were more than 61,000 athletes competing in NCAA-sponsored fall sports last year, and that doesn’t include smaller sports outside the NCAA umbrella. Even though most college athletes would presumably not contract COVID-19, and despite the extremely low mortality rate of COVID-19 for young, healthy people, probability suggests there would be deaths. Sheldon Jacobson, a computer science professor at Illinois, recently told CBS Sports that he projects there would be 3–7 deaths among 13,000 FBS college football players. Those athletes are also supported by thousands of coaches, trainers, academic advisors and administrators—many of whom are older and more vulnerable to the virus.
In an interview with Sportico, a Division I athletic director bluntly warns, “somebody is going to die.” The athletic director goes on to stress, “We have coaches with pre-existing conditions; we have athletes with pre-existing conditions.”
And if someone dies? “People should be accountable for that.”
Accountability could come through the law. Provided there is sufficient evidence the athlete or coach contracted coronavirus during team activities, a death could lead to liability for the school and university officials. It could even lead to criminal charges.
There are at least five key factors that would shape the legal consequences.
- Unpacking What Happened
A college player or coach who dies from COVID-19 would be a tragedy, but it would not necessarily mean anyone broke the law. To establish civil liability against a school, the school must have unreasonably breached a duty of care and the breach must have caused the death.
That standard is straightforward but applying it to a COVID-19 death is anything but.
Take causation. An athlete who dies of COVID-19 might have contracted the virus while playing a sport. Or he or she might have contracted it in another circumstance outside of the team or school’s control. Tracing the source could prove thorny, if not impossible.
Even if the “infector” could be credibly identified as connected to the team, that wouldn’t resolve the question of responsibility. Was the cause of death COVID-19, or was it a pre-existing health condition exacerbated by the disease? If it was a pre-existing condition, did the school know about it? If not, should the school be blamed? Meanwhile, did health care and medicines improve or worsen symptoms? Physicians and other health professionals might prove more “at fault.”
The reasonableness of a team’s safety measures would also affect potential liability. An athletics program that frequently conducts COVID-19 tests and that adopts sensible precautions would be armed with evidence of reasonable conduct. It would thus gain some degree of insulation from liability. Similarly, a coach who prioritizes players’ well-being would be in a superior legal position than a coach who is reckless or nonchalant about health. The quality of care and responsiveness of team trainers and medical staff would also prove important.
These considerations are not unique to COVID-19 fatalities. They were asked in the aftermath of the heatstroke-related death of Maryland offensive lineman Jordan McNair in 2018. McNair’s death sparked multiple investigations and findings of insensitive and passive treatment by members of the football program. Similar questions were raised in the $32.5 million wrongful death lawsuit brought by the family of Loyola Marymount basketball star Hank Gathers. Gathers died after he collapsed during a game in 1990 (the case, which delved into responsibility over the lack of a heart defibrillator, was settled out of court, with the school reportedly paying $1.4 million).
The “reasonableness” of playing sports during an infectious disease pandemic would also be relevant. The Ivy League and Patriot League have cancelled fall sports for health and safety reasons. Other conferences could follow. A conference that is named as a defendant in a COVID-19 death case could have a difficult time arguing that it was “safe” to play when other conferences reached the opposite conclusion.
Cases involving athlete deaths can prove complex and fact-specific. Their outcomes hinge on witness recollections, evidence and medical expert testimony. Should a COVID-19 death occur in college sports, expect a muddled fallout.
- Assumption of Risk and Enforceability of Waivers
The death of a player or coach on account of COVID-19 could trigger questions about the extent to which the player/coach accepted the risk. These questions are sometimes perceived as insensitive and as indicia of “victim-blaming,” but they are crucial to understanding the legal consequences.
Generally speaking, participants in sports assume the risks that are inherent in the sport. Take a football game. Numerous hazards arise on every play. Tackling and colliding are part of the sport and, unfortunately, can lead to severe injuries.
COVID-19 isn’t part of any sport. It is an infectious disease, the dangers for which are not fully known. Complicating matters, college students, unlike professional athletes and their unions, lack a collective vehicle through which they can negotiate “return to play” policies. Each college player must accept COVID-19 risks on his or her own.
As explored on Sportico, universities have requested that individual athletes sign COVID-19 waivers as a condition of returning to play. The waivers are designed to shield schools and their officials from liability should an athlete become ill with COVID-19.
There is no uniform rule on whether a COVID-19 injury or death waiver would be enforceable. Much would depend on the specific state law governing the waiver. Some states are more likely to find waivers as contrary to public policy. In Virginia, for example, waivers for personal injury caused by ordinary negligence are usually unenforceable. For UVA, Virginia Tech and the University of Richmond, this legal landscape would prove problematic should they rely on COVID-19 waivers.
The lack of state uniformity on waivers creates potential unpredictability for universities and, by extension, conferences and the NCAA. Athletic department staff and university counsel ought to carefully research relevant statutes and case law before greenlighting sports.
- Sovereign Immunity
All things being equal, private universities are more vulnerable to liability than are public universities. This is because of the doctrine of sovereign immunity. While the doctrine varies by state, it normally instructs that state universities, like other “arms of the state”, cannot be sued for personal injury unless they consent. It is a doctrine that can abruptly end cases for plaintiffs.
For instance, in 2015, the Florida Supreme Court held for University of Central Florida to limit damages in a wrongful death case brought by the family of Ereck Plancher, a football player who died during a conditioning drill. The reason: UCF, a public university, was protected by sovereign immunity.
Yet this doctrine is not absolute. It is less likely to apply in circumstances where school officials engaged in intentional misconduct. A public university that knowingly disregards the health risks of COVID-19 would likely gain less protection from sovereign immunity.
- Tort Reforms and Insurance Policies
Two identical wrongful death lawsuits filed in different states can lead to vastly different awards of monetary damages.
Most states—36 by one count—have adopted laws that limit potential damages in torts cases. Maryland, for example, limits recovery on pain and suffering damages, including in wrongful death cases. Florida, in contrast, has thus far eschewed efforts to limit recovery for pain and suffering and medical bills. The variability in potential recovery means that the COVID-19 death of college athletes and coaches could lead to vastly different financial penalties for schools.
Insurance would also play a key role. Schools’ insurance policies for student injuries contain limits on recovery. The presence of those policies would impact negotiations with a family whose son or daughter died of COVID-19 in the course of participating in a college sport.
- Criminal Charges
Eleven years ago, a jury in Kentucky acquitted high school football coach David Jason Stinson of reckless homicide and wanton endangerment for the death of 15-year-old Max Gilpin. After being ordered to run wind sprints in high temperature, Gilpin collapsed and was hospitalized. He would die a few days later. Stinson was charged under the theory that he unreasonably employed “barbaric conditioning” methods, and those methods caused Gilpin to die. Jurors disagreed.
Still, the Stinson case is a reminder that a coach who knowingly requires his or her players risk COVID-19 is treading in uncharted legal waters. What lurks beneath remains to be seen.