As college football teams across the state and country continue voluntary workouts during the COVID-19 pandemic, they’re taking on potential liability risks as scientists continue to learn more about the novel coronavirus.
To learn more about those risks, the Tampa Bay Times asked attorney Aron Raskas, who successfully argued in 2017 that the NCAA could be held liable for negligence claims involving women’s lacrosse concussions. Raskas is a Miami-based shareholder at the Gunster law firm, and this Q&A has been edited for length and clarity.
What are the biggest questions that schools are having to answer from a liability standpoint?
For someone to try to attribute liability to someone else, you have to establish four things: Someone has to have had a duty to do something. They had to have breached that duty by not acting in conformance with the standard of care. That breach of duty would have to have proximately caused the injury, and then someone had to have suffered damages.
To play that out in this environment, an institution that’s bringing students back has a duty to create a safe environment for them to operate in. There’s a lot of guidance out there, and I think everyone is pointing to the CDC standard as the standard that people have to conform with. Those (guidelines) include limiting crowd size, addressing how close together attendees can be at an event, considering ways to minimize transmission of the virus. If someone does get infected, tracing, testing, all those things.
If you have one quarterback who tests positive sitting in a room with the other quarterbacks, what do you do? That’s going to be a serious question. I guess the standard of care would arguably be that you quarantine everyone, because if you put the other three guys out there, and one hands the ball off to the running back and the running back comes up with COVID, someone can say you should have quarantined them. You failed to adhere to the standard of care. Now I’m sick. Here are my damages.
How does the practicality of what’s necessary for this game to work factor into things when it clashes against the ideal situation?
I would imagine the people at conferences and at the NCAA level are grappling with that. You’re balancing different interests here. One is conforming to the standard of care, protecting people from transmitting or getting the virus, versus being competitive and fielding a team.
If you put someone in a choice between his health and his livelihood or his health and his career, that’s where you get into thorny issues.
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They’re not calling it a waiver of liability. I suspect that if someone brought a lawsuit against them, they would probably be waving that pledge in front of the court saying the person signed this pledge.
They presumably are explaining the risks to people — not that anyone alive in this day and age doesn’t understand by now. It could be something that a program could later turn to and say, “You understood the risk, and you decided to do it, so you can’t come and look at us.”
The response to that is going to be: “Yeah, but you put me in an untenable situation because had I not played, I could have lost my scholarship. Had you canceled the season, had you canceled the program, you wouldn’t have put me in that box.”
In theory it could be a voluntary thing, but on a practical level, if I’m a scholarship player being asked to sign this, what choice do I have?
Exactly. When you have unequal bargaining power, a court’s going to factor that in, as well.
If Florida does something less restrictive (with fans at games) than other states, are they taking on more liability with having more people there?
I think you are correct that they could be taking on more liability. Remember, it all comes down to the standard of care. That’s the legal term. What is the standard of care these days?
If everyone else says, “Nah, you should really only have 25 percent of the stadium full” and somebody decides I’m going to fill up my stadium and then you have a massive outbreak, (if) someone brings a lawsuit, they’re going to point to that and say you violated the standard of care.
Does it matter, or how much does it matter, that the standard of care is changing?
A tremendous amount. It’s fluid, a moving target. It’s a nightmare for risk management people, lawyers, who are trying to advice people about what you can and should do because … the most effective means of reducing the virus is shutting everything down, sending everyone home. Society can’t survive like that. You have these tensions butting against each other.
It’s all in the eye of the beholder, but you have to be cognizant of the risks and the costs and the benefits.
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