The Fall 2020 semester will be unlike any other.
According to data compiled by The Chronicle for Higher Education, approximately 34% of colleges have gone fully or primarily online, and 15% have adopted a hybrid approach. In contrast, 23% of colleges remain fully or primarily in person. Nearly a quarter of colleges are still figuring out the right approach for teaching during the COVID-19 pandemic.
Schools are also wrestling with athletics. As with academics, schools are making different choices. Many conferences and colleges have shut down fall sports. Some have gone so far as to terminate teams. Student health, waivers, force majeure clauses and insurance policies are among relevant considerations.
This uncertain landscape has ignited speculation on social media about the fate of college sports. It also sparks three key legal questions:
1. Can parents successfully sue a conference, such as the Big Ten, to release records?
The short answer: Probably not.
The longer answer: Last Thursday, parents of Nebraska football players sent a letter to Big Ten commissioner Kevin Warren, signed by attorney Mike Flood, who is a state senator running for re-election.
Fashioned as a demand letter, it requested that the conference produce all records relating to how conference executives and member schools decided to cancel fall sports.
To that end, the parents press for tallies of votes, minutes from meetings, audio and video recordings, medical information used to reach a decision to cancel and various other sources of information. The letter warns Warren that unless the records are turned over, the parents “will have no choice” but to file a federal lawsuit on Aug. 24.
As of this writing on Aug. 26, no lawsuit has been filed.
Should the parents ultimately sue and demands records, their complaint would face hurdles.
First, the parents might struggle to establish they have “standing,” meaning a legitimate legal (not just social or emotional) interest in a dispute. Here, the parents are upset—some might argue justifiably—that their sons won’t be able to play football this fall. Decision-making by conferences, however, is not subject to parental review. Conferences and parents are also not in contract or business with each other. The players are also adults or near adult-age; if anyone has standing, it would likely be the players.
Second, a lawsuit must identify a specific area of law that has allegedly been violated. The Big Ten is a 501(c)(3) not-for-profit entity. The conference is thus obligated to publicly file various documents. Unless the Big Ten has failed to satisfy its disclosure requirements, it’s unclear why the conference would “have to” turn over records beyond those required by law.
Third, a court might find a complaint too ripe. The parents have not yet exhausted other avenues to obtain records. Thirteen of the Big Ten’s 14 member schools are public universities. To varying degrees, those schools are required to disclose materials under applicable states’ public records laws (also called FOIA laws). Those laws have specific policies regarding which documents are subject to disclosure and how quickly a school must respond. A court might view a lawsuit as an attempt to bypass or accelerate the administrative process.
Fourth, the parents would pursue a type of remedy—a court-issued injunction or a temporary restraining order—that is normally difficult to obtain. They would need to convince a judge that, among other things, they would have a substantial likelihood of success on the merits and that there is a realistic threat of immediate and irreparable harm unless the relief is granted. While they might convince a judge that canceled games will cause an irreparable harm—after all, the games aren’t going to occur as scheduled—that type of argument would be less convincing if those same games are later played. Also, any “harm” would presumably be suffered by the players, not the parents.
2. Should the parents file public record requests instead?
The short answer: Requests have already been filed; anyone, including parents, can file requests.
The longer answer: Attorney Tom Mars, who has crafted a plan to resume college sports through waivers and is in regular communication with parents of college football players, recently filed public record requests to the 13 public colleges of the Big Ten. He seeks emails and other “electronic or computer-based information” that reflect communications involving university presidents and/or athletic directors and that included the following search terms: Big 10, bubble, Covid-19, cardiologists, football, myocarditis, public relations, reputation, Kevin and Warren.
Mars tells Sportico that record requests are a more likely vehicle to bear fruit than would a lawsuit brought by parents. “Contrary to popular opinion,” Mars says, “the law doesn’t create a remedy for every wrong.”
Mars recognizes that public universities vary in their responsiveness to record requests. Further, state laws normally provide universities with substantial discretion on whether they are obligated to comply with a request and which documents can be labeled privileged. A rejection of a request can also be difficult, and very time-consuming, to appeal. It could be weeks or months before there is meaningful action.
Even if released records raise questions about the Big Ten’s decision-making, that alone wouldn’t mean the conference would need to change its choice to cancel fall sports. But it would shed light on why one of the Power 5 conferences canceled while three others—the SEC, ACC and Big 12—remain determined to play.
3. Do UNC athletes become employees if they are on campus while classmates are home?
The short answer: No, not by that fact alone.
The longer answer: Due to clusters of COVID-19 outbreaks in residence halls, UNC–Chapel Hill has shifted its fall semester from a hybrid model to all online. Students who recently arrived for the fall semester are now moving out of their dorms.
But that isn’t true of all students. The university is permitting several categories of students—international students, student-athletes and those without reliable Internet service—to remain.
Meanwhile, the Tar Heels’ athletic department has resumed activities for eight sports: men’s basketball, women’s basketball, cross country, field hockey, men’s soccer, women’s soccer, volleyball and football. Athletes in those sports are expected to report.
This structure has led some to opine that UNC athletes are effectively being forced to experience a heightened risk of contracting the virus.
In the longstanding debate over whether college athletes ought to be recognized as employees, disparate treatment of UNC athletes—some of whom help to generate more than $100 million of annual revenue for the university—might be perceived as evidence of employment. In some states (though not North Carolina), employees of public universities can unionize.
The legal analysis is not so straightforward. Under North Carolina law, as in many other states, the general test for whether a person is an employee concerns control of how work is performed. The Supreme Court of North Carolina has identified multiple factors for gauging whether a person is an employee. Workers are more likely to be classified as employees when they lack autonomy over the method of their work and when their relationship with the business is continuous.
The NCAA and its members have long described “student-athletes” as students first, and athletes second. However, a UNC athlete might argue that remaining on campus in order to provide athletic services highlights the distinction between being an athlete and being a student. If being a student came first, an athlete might argue, then he or she would be treated the same as classmates. This could be connected to employee recognition: The athlete is so devoid of autonomy over athletic services that they are told to remain on campus during an infectious disease pandemic.
UNC could offer rebuttals. First, the school could maintain that while the National Labor Relations Board’s decision in the Northwestern football players’ petition doesn’t govern (since UNC is a public university and is subject to state law), it is nonetheless persuasive precedent. The NLRB declined to recognize Northwestern University Football players as employees.
Second, UNC could contend that the health risk to athletes will be carefully managed and low. The university, which according to one recent tally has an endowment worth $3.4 billion, has the resources to provide the highest level of protections. This could help the school explain why it feels more confident it can safeguard student-athletes than students partaking in typical college behavior.
Third, student-athletes generally have more structured living and time arrangements than regular students have. However, that would be a tricky argument to make in the context of employee recognition: It would underscore how university control over athletes exceeds that of regular students.