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Home » Exercise Programs » State of Play: Reopening Considerations for College and University Athletic Programs – JD Supra

Colleges and universities face a host of issues to consider before reopening athletic programs in the wake of COVID-19, from the day-to-day operation of campus facilities to specific challenges around gameday operations and off-the-field activities such as recruiting. These considerations are particularly important for college athletics given that high levels of respiratory activity, large crowds, and travel all exacerbate the transmission of the virus.

College athletics programs should pay particular attention to two areas that impact all aspects of athletic activities: government orders and liability concerns. The below is by no means comprehensive but it is intended to provide a starting point for consideration of these threshold issues. Even as most institutions and conferences move to cancel fall sports, these issues impact ongoing off-the-field activities, such as recruiting, training, and administration. They will also remain relevant in the winter and/or spring seasons if restrictions are able to be lifted.

COMPLIANCE WITH GOVERNMENT ORDERS

Since the onset of the pandemic, state and local jurisdictions have issued a host of evolving and occasionally contradictory orders to attempt to control the spread of COVID-19. The checklist below evaluates the potential impact of these orders on athletics operations.

Reopening Requirements. Many jurisdictions have outlined detailed requirements for reopening businesses and institutions, including colleges and universities. These requirements may change depending on the extent of the spread of the virus at a given time, and in some jurisdictions they may require governmental approval in order to reopen. All programs and conferences should be aware of these requirements, which may change not only from state to state but also from locality to locality.

At a high level, reopening requirements impacting athletic programs include:

Enforcing Screening, Masks and Physical Distancing Requirements. As noted above, many jurisdictions require safety and physical distancing measures. While universities may be able to compel students, faculty, and staff to adhere to these requirements (whether through directives or a sense of obligation to the shared university community), requiring adherence to such measures may be more challenging for visitors and guests, particularly those from communities with different practices and norms regarding these measures. Some gameday considerations stemming from these requirements follow below:

Mandatory Quarantine for Out-of-State Visitors. Amid the resurgence of the virus over the past few weeks, some jurisdictions have imposed a mandatory quarantine for individuals traveling into the state from high-risk locations (which include the majority of states).

These requirements also affect teams returning from out-of-state competition. As a result, it potentially places athletes in a state of continued quarantine for the entire season and effectively prohibits participation in in-person academic or practice activities.

Recruiting, Fundraising, and Other Athletic Operations. Beyond competitions, athletics programs rely on extensive travel for other activities, including recruiting and fundraising efforts. As noted above, many reopening guidelines limit non-essential travel. Even if recruiting or fundraising is considered to be essential, a mandatory quarantine requirement severely impacts these activities. It may be impractical for coaches, scouts, and prospective students to balance the intense travel required for recruiting visits with mandatory multi-week quarantining requirements for travel to states with such requirements (and doubly so if they then need to return to a state with similar restrictions).

Only some states have imposed these restrictions, and the list of hot spots that are restricted vary from state to state. This creates a geographic inconsistency that could impose a greater burden on programs and/or athletes based on their location and create a disadvantage unless recruiting guidelines are adjusted to acknowledge these inconsistencies.

LIABILITY

Waivers. As institutions continue to navigate the impact of the COVID-19 pandemic, some are exploring ways to mitigate the risk of liability related to potential COVID-19 exposure claims. One risk mitigation strategy some institutions have considered is the use of contractual liability waivers for students, staff, and spectators. In determining whether and how to use liability waivers as part of the reopening process, institutions should consider the following:

It also remains to be seen whether an NCAA member institutions use of COVID-19 liability waivers for student athletes and student coaches or trainers would interfere with the students eligibility for benefits under the NCAAs catastrophic injury insurance program. Through that program, the NCAA covers the cost of insurance for student-athletes who are catastrophically injured while participating in a covered intercollegiate athletic activity. (See NCAA Catastrophic Injury Insurance Program). However, where an institution requires a student-athlete to sign a liability waiver based on a medical condition, the student also waives coverage under the NCAAs policy for injuries related to that condition. While the NCAA has indicated that it does not expect most COVID-19 scenarios to fall within the scope of the policy, that could change as our understanding of the effects of COVID-19 continues to evolve.

Privacy Issues. As institutions work to develop reopening procedures for student-athletes and staff, institutions must take potential privacy issues into consideration. Some key considerations include:

If the unfortunate event that an employee contracts COVID-19, the institution may disclose the name of the employee to health authorities, as needed. However, when communicating internally, institutions must refrain from disclosing or confirming the identity of the employee who has been diagnosed with COVID-19 to anyone other than those who need the identifying information to help protect others at the institution from a direct threat of exposure.

In an effort to protect employees from risks of exposure, a number of employers are considering applications and other technology-based contact tracing and tracking solutions. Any institution that seeks to incorporate these methods into its reopening procedures should first gain a full understanding of the privacy-related risks they create.

In March, the Department of Education issued guidance confirming that, where an institution believes that students or others at an institution are exposed to a significant threat to health and safety due to COVID-19, a students records, including health records, may be disclosed to public health departments without prior written consent from the student. However, if a student contracts COVID-19, an institution is not permitted to disclose information about the students illness to other students without prior written consent, unless the institution is able to share information without disclosing the students identity or other personally identifiable information.

In light of these and other privacy restrictions, institutions would be well advised to consider taking a proactive approach to obtaining written consent forms authorizing disclosure of student information that may be necessary for the institutions to monitor COVID-19 risks both within athletic departments and the broader campus community.

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State of Play: Reopening Considerations for College and University Athletic Programs - JD Supra

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Home » Exercise Programs » State of Play: Reopening Considerations for College and University Athletic Programs – JD Supra