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June 26, 2020

COVID-19 Risk Waivers | Here’s What We Know So Far

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Voluntary workouts are currently underway around the country, and some universities, like Ohio State, are requiring their athletes to sign risk waivers. What do we know about these documents? In short, not much. But as the days pass, the list of universities requiring athletes to sign off is expanding. This is a practice that will likely become commonplace, especially as the NCAA has approved mandatory team activities to start on July 13. 

Although the Buckeye Pledge, a two-page risk waiver that Ohio State football players must sign, says: “Ohio State’s highest priority is the safety of its students, faculty, staff, and visitors,” the document also notes that the measures undertaken by Ohio State cannot fully eliminate an athlete’s odds of catching coronavirus. The first-person document includes a clear acknowledgement of risk (“I may be exposed to COVID-19 and other infections. I also understand that despite all reasonable efforts by the university, I can still contract COVID-19 and other infections”), and also requires athletes to undergo a list of procedures before each practice, including temperature check, monitoring for respiratory discomfort, and self-quarantining should an athlete catch the disease. A key section of the waiver also places the responsibility of personal health on the athlete, which is troublesome, considering football is a sport in which CDC measures such as social distancing are impossible.

Whether or not the Buckeye Pledge is legally binding or not is unclear. Ohio State athletic director Gene Smith has gone on the record stating: “We don’t look at that as a legal document. It’s a Buckeye pledge. Allow us to help you so that if we face a situation, our trainers, our strength coaches, our coaches or any athletic administrator sees a student-athlete not wearing a mask or not social distancing, we can say, ‘Hey, you made a commitment. You signed a pledge. Your parents signed a pledge. Your parents are a part of this.’”

However, it could easily be viewed as an acknowledgement of inherent risks. Although the document does not address liability, sports attorney Dan Lust notes that the Buckeye Pledge can potentially be viewed as “a functional waiver up front that just says ‘Hey, you have no rights to sue us right now because you’ve signed, and you’ve waived your legal rights.’”

Similarly, law professor Marc Edelman, says that the document “would likely constitute the mutual assent necessary to create a binding contract,” and that “the requirement of a parent’s signature for athletes under the age of 18 bolsters that argument.” In an article for Forbes, Edelman also writes: “Whether the “Buckeye Pledge” is truly a legally enforceable document is subject to reasonable debate, as the wording is bland and there is arguably no legal “consideration” for obtaining the players’ signatures. But the ‘Buckeye Pledge,’ at a minimum, muddies the waters about Ohio State’s potential liability if a player were to fall ill from Covid-19.”

Will Ohio State, and other universities using these pledges be legally liable if an athlete contracts COVID-19 after signing the Buckeye Pledge? Probably not. Can an OSU athlete participate in workouts without singing the document? No. Is an OSU athlete’s scholarship threatened if they refuse to sign the Buckeye Pledge, and therefore, cannot work out with their team? Certainly. And that, in sum, is what we know about COVID-19 risk waivers in college sports. 

For more NCAA updates, follow Katie Lever on Twitter/Instagram: @Leverfever

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