Many people are excited that Big 10 football will happen this fall, after all. Others are worried, for obvious reasons. From players to spectators, and everyone in between, the risk from the pandemic is very real. Although spectators will be greatly limited, football is a contact sport. Players literally get in each other’s faces. So, who is on the hook if someone gets sick?

The question of liability

When one person causes injury to another person, the law generally considers them legally liable for that injury. Passing a virus is not something the law usually considers to be under one’s control, and normally would not trigger legal liability. These are not normal times, however. In the midst of a pandemic, going against the recommendations from public health experts can put organizations in a precarious position, legally.

The liability waiver

For many organizations across the country, the answer to this problem has been the liability waiver. A waiver is an agreement for a participant not to sue the organizer of an activity for any injury they sustain while taking part in that activity.

Although this idea seems simple, courts routinely strike down liability waivers for various reasons. In addition, the rules vary from state to state on what they can include. This further complicates matters for schools where they will be playing in many different states. Here are a few other problems with liability waivers:

  • Coronavirus is not an inherent risk to playing football – Courts sometimes allow liability waivers for injuries that are part of the game or sport, such as being hit by a foul ball at a baseball game. Covid-19 does not meet that criterion.
  • They often don’t cover extreme negligence – Courts recognize a difference between ordinary risk and extreme negligence by the organization. For example, if a coach knows a player has symptoms of Covid-19, but decides to let him play anyway, that goes beyond the scope of the waiver.
  • Whether it is a contract of adhesion – Courts don’t like contracts that give one party no ability to negotiate the terms, called a contract of adhesion. Often, liability waivers are pre-written and the participant is told to sign or go home. Or worse, sign or lose your college scholarship.
  • Personal injury liability isn’t the only problem – Even if a waiver holds up under personal injury law, many other issues could become a concern. For example, coaches and staff who are older or have underlying health conditions could still sue based on labor and employment law.
  • They go against public policy – Some courts consider the public policy implications of liability waivers. Is this good for the community as a whole? With public health experts expressing concern over group gathering and lack of social distancing, courts may decide the waivers are not good for the public.

Illinois courts have cited many of these problems when striking down liability waivers.

Will Big 10 allow fans in the stadiums?

For the most part, the players will play in nearly empty stadiums. Schools cannot publicly sell tickets. Only the family of players and staff can purchase tickets to the games, if the school agrees. The University of Illinois has decided to allow this, as have many other participating schools. The schools had to weigh the lost ticket revenue against the difficulty of enforcing social distancing guidelines in particular states. Although the NFL is attempting to play their season with a small number of spectators, the Big 10 decided against it.

Although the Big 10 did not make their decision lightly and have many safeguards in place to keep the teams healthy, the risk is real. As the players suit up, the organization may want to prepare itself for legal challenges down the road.