Many colleges and even colleges ask their athletes to sign exemptions from COVID-19 which absolve institutions of responsibility if they get the virus, but experts question whether the documents will hold up in court.
"This will be a huge issue for the next 60 days as a student athlete" and other students returning to college, said Gregg E. Clifton, a principal at the Jackson Lewis PC in Phoenix, who co-chairs the company's collegiate and professional athletes "The question is whether these documents are potentially enforceable." If students get sick, he said.
Observers say such exceptions should be included in a comprehensive COVID-19 risk management program.
If universities sue, they are likely to are covered by their general liability policy, provided they do not include a COVID-1
Exceptions vary widely, from documents clearly written by lawyers that contain much "legalese" to material, sometimes called promises, as in
Southern Methodist University in Dallas asks its athletes to sign an exemption that "looks a lot like e. standard responsibility and is unambiguous in its language, "said Marc Edelman, a law professor at Baruch College & # 39 ;s Zicklin School of Business, who specializes in sports law.
In contrast, Ohio State University's "Buckeye pledge" "includes some of the same standard language that one might expect to find in an exception, but then uses floral language, such as calling it a promise, to further confuse The student athlete. "
A spokesman for Ohio State, located in Columbus, said in a statement that the pledge" is not considered a legal document. It is intended as an educational component for student athletes and their parents as part of our return.
"It is a recognition of our student athletes for their responsibility to keep themselves, fellow students and the Ohio State community safe during this crisis. "
State regulations on exemptions vary widely, experts say.
Louisiana, Montana and Virginia alone do not allow exceptions. Even among states that allow exceptions, there are some that do not allow parents to sign them for their minor children.
"At the end of the day, I think many of these exceptions will be susceptible to litigation," said Carla Varriale-Barker, a shareholder in Segal, McCambridge, Singer & Maloney Ltd. in New York.
" It's too early to determine how effective the exceptions will be in general "in the context of COVID-19," said Mike Mero, Chicago-based executive director of coverage advocates and resolution requirements at Aon PLC. "We do not even know what the standard of care is. is to determine whether an educational institution is negligent or not. "
" I am very concerned about these exceptions from a legal point of view, "said Jason A. Setchen, of the Law Offices of James A. Setchen PA in Miami, who represents
"They begin with the fact that the children who sign them, or their families, are almost not all represented by councils. I wonder if the children fully understand what they sign and what they abstain from."
Mr. Setchen questions o also if the students understand the health effect if they get the disease. "It's a virus that affects the lungs," he said. "Will the school honor its scholarships, even if they can not return?"
Also, there must be a face of bargaining power given to the student signing the exemption, he said.
An exception effectiveness will depend on how it is formulated, says Michael LeRoy, professor at the School of Labor and Employment Relations and Law of College at the University of Illinois at Urbana-Champaign.
"The test for enforcing an exception is that it must be voluntary," and the conditions are clear to those who waive the right to sue, he said, adding that it is a tough test given the uncertainty surrounding COVID-19.
Sherry Culves, a partner with the Nelson, Mullins Riley & Scarborough LLP in Atlanta, which specializes in education, employment law and civil litigation, said her company's exemption management strategy "leans more towards risk recognition and a kind of security pledge, in which we ask student athletes, "like coa ches and others, to" understand that they all have a role to play in promoting a safe environment. "
"Every institution will need to take a look at what is right for their society," she said.
Putting athletes close to each other in training or games, however, makes it less likely that the waiver will be considered enforceable, said Mr. Mero.
Richard C. Giller, a partner, insurance recovery and counseling, with Pillsbury Winthrop Shaw Pittman LLP in Los Angeles, said: “No matter what precautions are taken, no matter how faithfully they follow all guidelines, if someone gets sick they will probably be sued. These exceptions will not isolate universities (from lawsuits) but they can help reduce or eliminate responsibilities from schools.
Ronald S. Katz, a lawyer with GCA Law Partners LLP in Mountain View, California, which focuses primarily on legal issues in sports law, said signing an exemption "is not a mandatory activity in any way, so even without an exemption would I say that the athlete takes the risk of this behavior ", just as would be the case with someone who goes to a store or a restaurant.
Meanwhile, a "wild card" is that U.S. Senators Corey Booker, DN.J., and Richard Blumenthal, D-Conn., Have said they plan to introduce the College Athlete Pandemic Security Act, which would no longer allow exemptions from student athletes at the federal level.
Mr. Edelman recommends that all students – not just athletes – be asked to sign exemptions. "From an ethical perspective, colleges and colleges should get all students to sign an identical exemption," and if they "do not feel comfortable doing so, they should not specifically ask their football players to do so."
"It is important to communicate with students and their parents, and whoever you ask to sign an exception, that it is a legal document" that waives certain rights under the law, said Varriale-Barker.
Waiver is an opportunity for the department to set who signs the notice of the precautions they should take to protect themselves, Mero said.
"Another secondary benefit is that it helps to document what the university is doing to protect against the transmission of COVID-19 "by creating a written registry, he said.
Exceptions should be part of a comprehensive risk management program, said Alyssa Keehan, head of risk management research for Bethesda, Maryland-based United Educators Insurance, a mutual risk retention group, which insures about 1,000 universities.
The university's overall risk management strategy "to manage the risk of coronavirus, she said.
" When done right can be exempt g really be a documentation of the institution's practice of managing risk and should go hand in hand with education and training, "said Keehan.
She recommended that, if possible, colleagues hold mandatory meetings where exceptions are declared, and that students be given time to consider the exemption. "Make sure you create an environment that shows that the signer has enough time to study what they sign and sign it voluntarily," she said.
If a meeting is not possible, students should be given information, perhaps in the body of the exception itself, about who they should contact with questions, she said.
There will be "many real gaping holes no matter how hard we try," said Karen Weaver, a clinical associate professor of sports management at Drexel University & # 39 ;s LeBow College of Business in Philadelphia and a former college export leader.
"Everyone tries to do the right thing, but there are so many unknowns."