[Reprinted from the Sports Litigation Alert – the premier sports law newsletter. Gary is a contributor to the publication.]
Universities are grappling with the question of whether to conduct classes remotely or to open their campuses in the fall, amid a pandemic. A corollary issue is whether to conduct intercollegiate athletics at schools that do admit students to their campuses. There will certainly be economic pressure to forge ahead with revenue-producing sports, such as football and men’s basketball. But engaging in athletic competition presents some thorny legal issues, especially if there is a COVID-19 outbreak within a team.
Will student athletes who are infected by the virus through athletic competition have any legal recourse against colleges who fail to take adequate steps to protect them, or will the organizers of events find protection under the legal doctrine of assumption of risk?
As businesses across the country begin to reopen, workers have sought assurances from their employers that every necessary step is being taken to maximize safety. Employers, who are understandably concerned with potential liability should an outbreak affect their employees, are seeking protection from state and federal governments that they will not bear legal liability for workplace contagion.
University presidents, and presumably their athletic directors, are also concerned with possible liability should they open their campuses and conduct sporting events. On May 14, a little over a dozen college presidents conferred online with Vice President Mike Pence and Secretary of Education Betsy DeVos for guidance. One takeaway from the conference was that universities would like to receive legal immunity protecting them against civil liability should a coronavirus outbreak occur on campus.
Educational institutions and other employers received some encouraging signs from Senate majority leader Mitch McConnell, who said on the Senate floor that Republicans are working on a proposal that would give people confidence that they won’t be held liable [https://www.athleticbusiness.com/civil-actions/colleges-worry-about-liability-as-they-look-to-reopen.html]. McConnell did not get specific, but that sounds a lot like statutory immunity.
But do colleges need statutory immunity to hold football games and other athletic events with confidence, or would student athletes assume the risk of contracting COVID-19 and relinquish any potential cause of action should they agree to play during the pandemic?
Assumption of risk is an affirmative defense to negligence and other torts that applies when a plaintiff has actual knowledge of a risk, understands the risk and voluntarily exposes him/herself to the risk. It has been eliminated or merged with comparative negligence in many jurisdictions. For instance, in Carrender v. Fitterer, 503 Pa. 178 (1983), the Pennsylvania Supreme Court effectively held that assumption of risk is simply another way of stating that the operator of a facility or property owes no duty of care to an invitee. In other words, it is no longer an affirmative defense to negligence, but the defense that a defendant had no legal duty to act. The practical effect is that those who voluntarily expose themselves to a known risk might not have their claim completely barred; instead, they might have a potential recovery reduced when the trier of fact apportions fault between the parties. See, Anderson v. Ceccardi, 6 Ohio St. 3d 110 (1983).
Athletes assume the risk of harm associated with the normal and accepted activities that are inherent in playing a particular sport. If transmission of the flu and other contagious ailments is a normal and accepted part of sports (and other activities), then would the law view transmission of COVID-19 differently? If not, then universities might feel confident in proceeding with scheduled games.
Yet, as in any aspect of the law, there are exceptions to the general rule. An exception to the assumption of risk doctrine comes into play when the defendant’s conduct enhances the risk of harm. For instance, batters in baseball assume the risk of being struck by a pitched ball, whether it be intentional or unintentional. However, the defense may not apply if the organizer of the game has acted or failed to act in a manner that increased the risk of injury from a pitched ball. This was the ruling in Fithian v. Sag Harbor Union Free School District, 864 N.Y.S.2d 456 (App. Div. 2008), where the appellate court uphold a denial of summary judgment where a player who was struck in the head with a pitch was issued a cracked batting helmet that allegedly increased the risk of injury. The court stated that participants do not assume risks that are “concealed or unreasonably increased.”
In the event of an outbreak affecting one or both teams who recently competed against each other, it is not difficult to imagine an expert in infectious diseases opining that the universities who participated enhanced the risk of spreading COVID-19 to their student athletes by failing to take proper precautions. This sort of opinion might prove sufficient to overcome a defendant’s assertion of assumption of risk or contributory negligence. If so, universities might be reluctant to proceed with sports unless they enjoy immunity.
Applying assumption of risk or statutory immunity presents ethical, as well as legal considerations. In the case of the former, is it fair to burden schools with potential liability for the spread of an uncontrollable virus among student athletes who decided to engage in a voluntary activity? It may be particularly inequitable to force colleges to defend legal actions where proximate cause might be extremely difficult to prove. But if the universities were granted immunity, would it be fair to deny any potential recourse to student athletes who might contract the virus as a result of gross negligence on the part of the school that is charged with safeguarding their health?
Of course, legal liability is but one consideration in the overall equation. The safety of student athletes must be paramount. For many, television revenue and obligations will constitute a material factor in the decision-making process. Yet, the decision to play or not to play will be made in the larger context of the underlying purpose of intercollegiate athletics. Educators will need to decide whether sports are a fundamental aspect of higher ed or merely an extracurricular adjunct to formal learning. Stay tuned.