The collapse and hospitalization of Florida forward Keyontae Johnson raises questions about policies used by conferences and colleges to assess the health of players who previously suffered from COVID-19.
Johnson, 21, tested positive for COVID-19 over the summer. In order to be eligible to play under SEC COVID rules, Johnson had to pass multiple cardiac tests, including an electrocardiogram and an echocardiogram. Testing is conducted by a third-party evaluator, rather than by the school or conference.
Johnson collapsed on the court during a game against Florida State on Dec. 12. After a multi-day hospitalization, Johnson was released to the care of his parents and The Gainesville Sun reported that Johnson was diagnosed with acute myocarditis. The Mayo Clinic describes myocarditis as inflammation of the heart muscle which can undermine the heart’s ability to pump. Myocarditis is usually caused by a viral infection. It has been linked to COVID-19, including with athletes such as Boston Red Sox pitcher Eduardo Rodriguez and Miami Hurricanes safety Al Blades Jr., though some studies suggest this link may be overstated or unestablished. Myocarditis was one of the principal concerns for college administrators when weighing whether to play sports this year.
Johnson also isn’t the first well-known basketball player to collapse on the court due to an apparent heart condition. Hank Gathers tragically died while playing a basketball game at Loyola Marymount University in 1990. An autopsy revealed that he had suffered from cardiomyopathy, a sometimes-inherited condition that makes it more difficult for the heat to pump blood. Three years later, Boston Celtics star Reggie Lewis died of heart failure while shooting baskets. In 2018, G League player Zeke Upshaw died on the court and a subsequent autopsy indicated cardiac abnormalities. Upshaw’s family would later sue the NBA for wrongful death. (The case was settled out of court).
Heart issues and basketball players have also presented a more general concern. According to a 2017 joint study by the NBA and Columbia University Medical Center study, nearly one in six NBA players exhibited an abnormal result in an electrocardiogram.
There are potential legal issues with Johnson’s situation.
The first is whether Johnson received adequate care. To be sure, if Johnson fully recovers, he would likely focus on resuming his basketball career. He was the SEC’s Preseason Player of the Year and is regarded as a first round prospect in the 2021 NBA draft.
Yet if health ailments prevent Johnson from continuing his career or diminish his skills, he could explore whether other parties might be legally responsible and should pay him monetary damages to account for lost earning power. To that point, it should be noted, Johnson’s family has already suggested his situation is one they hope other families can avoid. “We are committed,” the family expressed in a statement, “to sharing not only updates on Keyontae but also any information we think could help others.”
The reasonableness of school and conference return-to-play policies, for example, could spark a negligence lawsuit against Florida, the SEC and third parties that cleared him to play. Johnson could easily detail the financial motivations for colleges pushing forward with sports right now—consider, for example, the Big Ten’s recent decision to amend rules to enable Ohio State appearing in the playoffs, a move that could net the conference millions of dollars. Playing football and basketball games during the pandemic has allowed conferences like the SEC to preserve their main source of income—TV money. The SEC generated $721 million in 2019, according to its tax returns, with $477 million of that coming from television and radio rights. That’s distributed back to the league’s 14 schools, which took home an average of $45 million from that haul in 2019.
Johnson could suggest that push led to choices that comprised player safety in the pursuit of money. Likewise, Johnson might assess whether he has received adequate medical care in the aftermath of his collapse; if not, medical malpractice could surface as a possible legal action.
Like with any litigation regarding health, there would be a number of hurdles for Johnson; an adverse health care result, by itself, does not establish wrongdoing. The medical tests used to examine Johnson may have been appropriate and sound. He might have also received excellent hospital care. His heart condition could have nothing to do with COVID and may have been a looming threat that thankfully didn’t result in death. There can also be obstacles in suing public universities—though that is less of a challenge in Florida for personal injury claims—and in overcoming caps on potential damages.
A second legal issue is privacy.
While better known than most, Johnson is still a college student. Consequently, he is entitled to protection of his health and student records. The disclosure of his (apparent) health condition invites the possibility of unauthorized disclosure.
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that prohibits covered entities—including hospitals, physicians, nurses and insurance companies—from disclosing patient care information without patient consent. If Johnson’s condition was leaked by hospital staff to a journalist, there may have been a HIPAA violation by the hospital (but not by the journalist; journalists aren’t classified as covered entities under HIPAA).
HIPAA often doesn’t provide a desired remedy. For one, it normally does not apply to student health records. For another, HIPAA lacks a private right of action, meaning a person whose records were unlawfully shared would not be able to sue through HIPAA. HIPAA is instead enforced by government agencies.
Another relevant privacy law is the Family Educational Rights and Privacy Act (FERPA). FERPA governs the privacy of student records. However, as noted by a joint guidance by the U.S. Department of Health and Human Services and the U.S. Department of Education, student patient records maintained by a hospital, including one affiliated with a university, are generally not considered education records.
Even without possible remedies under HIPAA or FERPA, Johnson could turn to invasion of privacy laws. Five years ago, then New York Giants defensive end Jason Pierre-Paul sued ESPN and Adam Schefter after Schefter tweeted a photo of a medical chart revealing the amputation of Pierre-Paul’s right index finger on account of a gruesome fireworks accident.
There are many unknowns with Johnson’s situation, but it’s one that calls for asking hard questions.
With assistance from Eben Novy-Williams, Luke Cyphers, Emily Caron and Daniel Libit.