In Already Unfair System, Ohio State Football Players May Have Just Assumed The Risk Of Contracting COVID-19

It is bad enough that some big-time colleges have asked their unpaid football players to return to campus before it is deemed safe for the overall student body to do so. But, now one college has gone even further to require its football players to assume the legal risks of their own premature return — a decision that plays into the greater systematic inequity within the NCAA system.

According to this article published today by Joey Kaufman of The Columbus Dispatch, the Ohio State University has required its college football players to sign a new and perhaps troubling document called the “Buckeye Pledge” that. among other things, includes a statement that all players must acknowledge that they “may be exposed to COVID-19 and other infections.”

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 University’s potential liability if a player were to fall ill from COVID-19.

The fact that such a document even exists in today’s era of college football, where big-time athletics programs such Ohio State already profit handsomely off the work product of their unpaid college athletes is, in itself, troubling. According to this article that appeared in Forbes, the Ohio State University’s athletics program enjoys three-year average annual revenues of $132 million and three year average annual profits of $52 million. Clearly, the university could bear the legal risks to their college athletes if they choose to offer football in COVID-19.

By contrast, Ohio State University football players do not earn salaries, may not endorse products for money, may not sign autographs for money, and are pulled out of class for football purposes. Thus, the fact that they are not only being asked to return to campus before other students during the times of COVID-19 but are also being asked to assume the risks of contracting a potentially dangerous virus is beyond troubling.

Under a better and more equitable version of big-time college sports, college football players would never be placed in a position to sign a document of this nature. If players on the Ohio State University football team were unionized, union leaders would almost certainly refuse to allow the players to agree to such language. Yet, sadly, the NCAA and its member colleges have actively taken steps to seek to prevent college football players from unionizing.

Along the same vein, if players on the Ohio University college football team were represented by player agents or personal lawyers, it is likely that these representatives would strongly discourage the signing of waivers of this nature. However, the NCAA continues to deny college athletes the opportunity to make free market decisions about who to hire as agents.

It would be nice if one could earnestly believe that the “Buckeye Pledge” is intended merely as a statement of aspiration, and that big-time sports programs such as Ohio State University were not really trying to shift all of the health risks of playing college football during a pandemic onto the student-athletes, while at the same time profiting immensely off labor. However, based on the recent course of dealings in college sports, such a belief would seem, at best, naive.

As a word of caution to big-time college football programs: it would be wise to drop these purported “pledges,” waivers and other cute legal strategies that may seek to shift the risk of playing college football during COVID-19 from schools to athletes. While some lawyer may have thought these documents were great ideas in the short run, their mere existence only strengthen the arguments for massively reforming an unjust system of big-ti

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Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law,” “How America Should Reform its Sports Agent Laws” and numerous other sports and education law articles. In July 2019 he testified before the State of California legislature on behalf of the Fair Pay to Play Act.