Senators press NCAA for coronavirus rules, criticize schools’ liability waivers

The chairman of NCAA’s board of governors told a Senate committee Wednesday that he supports universal coronavirus guidelines and that the national governing body for college sports is actively discussing its options.

Michael Drake was among the panelists appearing before the Senate Commerce, Science and Transportation committee for a hearing ostensibly focused on athlete compensation and name, image and likeness issues. But the hearing regularly veered into concerns over athlete health amid the ongoing pandemic that threatens the fall sports calendar.

To this point, having received recommendations but no mandates from the Indianapolis-based NCAA, universities have implemented widely varying plans to deal with the novel coronavirus for the upcoming academic year.

Sen. Jacky Rosen, D-Nev., noted that while the NCAA has published guidelines for restarting college sports, “it has left it up to individual schools to decide on how to implement health and safety policies.” That means that each of the 1,100 member schools could manage their athletic activities differently, relying on wide-ranging and inconsistent protocols for testing, social distancing and quarantining their athletes.

“So the lack of a unified response from the NCAA may result in what we see playing out in the states: a patchwork of mandatory and voluntary guidelines, potentially resulting in spikes and transmission of the virus in some states and some schools and not in others,” she said.

Asked by Rosen if the NCAA plans to issue universal guidelines to its schools, Drake said: “This is under discussion actively on a daily basis and we’ll be talking about this later on in this week. I certainly support that.”

Drake, the outgoing president at Ohio State, also faced heavy questioning from senators on the matter of liability waivers. Several schools, including Ohio State, Missouri, Tennessee and SMU, have asked athletes to agree to certain conditions before resuming athletic activities, advising them of the risks associated with COVID-19.

Drake said he would not support a waiver and that Ohio State students instead signed a “pledge” in which they agreed “to basically follow the good public health guidelines that you and I and everyone should follow to help protect us against the pandemic.”

Seated next to him on the panel was Dionne Koller, a law professor at the University of Baltimore, who noted that “even things like the ‘Buckeye pledge,’ which are important for public health, I think can cross over and be used later on down the line to be sort of an assumption of the risk.”

Sen. Richard Blumenthal, D-Conn., and Cory Booker, D-N.J., introduced a bill Tuesday barring such waivers and prohibiting schools from pulling scholarships from athletes who opt out of participation because of coronavirus fears.

Blumenthal read from the Buckeye pledge in Wednesday’s hearing, in which an athlete agrees, “I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.” He noted that similar to waiver forms required at other schools, “they use the word ‘risk’ and they provide for an assumption of risk by the athlete. That is in effect a waiver, from my standpoint, as a lawyer.”

Said Drake, whose term as school president formally ended this week: “What we want to do is make sure people are behaving in a responsible fashion to protect themselves and their community.”

Blumenthal asked whether an athlete signing the pledge would still have the ability to sue the school or pursue remedial measures down the road. Drake said Ohio State’s athletes are not waiving that right.

“I hope your lawyers agree with you,” Blumenthal said.

“Well, I hope so too,” Drake responded.

While schools and conferences have been debating return-to-play plans, most have opened the doors for athletes to resume sport-related activities on campuses. Blumenthal pointed to a recent Vice report that counted more 150 players from NCAA Division I revenue sports who have tested positive for coronavirus since voluntary workouts began last month—a low estimate, the senator noted, considering fewer than half the schools have reported their numbers publicly.

Keith Carter, the athletic director at Mississippi, told the committee his school did not require a waiver for athletes but tested them all for COVID-19 and antibodies when they arrived on campus last month.

“What we found as students athletes returned, we had a few positive cases,” he said. “As they spent time together, the cases spiked some and now we’re seeing it go back down. I think they’re starting to realize the protocols are needed.”

The bulk of Wednesday’s hearing was focused on athlete compensation issues related to name, image and likeness. Three dozen states are considering bills that would allow athletes to earn endorsement money, and three—California, Florida and Colorado—have already passed legislation. The first of those laws goes into effect next July, and the NCAA has been lobbying lawmakers for urgent federal legislation that would provide a nationwide framework of guidelines, ensuring some semblance of fairness from state to state.

“There’s a little bit of—I don’t know if hypocrisy is the right word—we’re asking athletes to sign waivers to deal with a pandemic, but they can’t balance tweeting something out for $100 and still go to class,” Eric Winston, the retired football player and former president of the NFL Players Association, told the committee Wednesday.