For you lawyers out there (COVID football opening related)

[TNbuc2]

No you're not missing anything.

I talked to my lawyer father about it. Yes you'd have to prove they got it because of football which is next to impossible and you'd have to prove some kind of negligence on the part of the university. On top of all that the players are open about their understanding of the risk.

There's all of that and the fact remaining that they are not in any real danger from the virus according to the data and its not like they could prove that if they weren't playing football they wouldn't get it...i mean its a global pandemic! Its everywhere and players got it on their own before they reported to camp.

There's no sense to any of it.

Sort of like Healthcare workers. If you contract the virus, you probably got it at work but... It seems to be a responsibility one assumes. Occupational hazard, such as hepatitis, etc. I am sure Teachers contract strep and colds from students. Of course common sense and the Law do tend to travel separate paths from time to time.

 

[Volfan76]

This has nothing to do with the fear of legal liability....at least not from the liability of medical claims. If schools could be held liable for sports, then they would have to be liable for being open to classes. If schools are liable, then employers, churches, and municipalities are liable. Nobody without a political agenda is going down that road legally. This is a pandemic that we have never seen and the medical "experts" change recommendations daily. This is about money. Football just matters more in the sec and therefore there is more money at stake.

 

[jeff1vol]

Anyone dumb enough to believe that "Playing Football" causes any type of inherent INCREASE in your chances of contracting Covid, needs to really reevaluate your thought process. If you think for one second that ALL these students are going to lock themselves in their dorm rooms until God knows when... yeah.
On another note... if the individual feels it's too dangerous to play, don't play. It's really THAT simple. Nobody is forcing ANY of these athletes to compete. They are ADULTS. Young adults, but adults nonetheless. They should be able to make adult decisions. Life often times requires one to make a tough decision. Make the decision and live with the consequences.

 

[The Original Fade]

And no I’m not a lawyer I’m a physician that serves on the advisory board of a large malpractice carrier

What is your specialty? Just curious

 

[The Original Fade]

Anyone dumb enough to believe that "Playing Football" causes any type of inherent INCREASE in your chances of contracting Covid, needs to really reevaluate your thought process. If you think for one second that ALL these students are going to lock themselves in their dorm rooms until God knows when... yeah.
On another note... if the individual feels it's too dangerous to play, don't play. It's really THAT simple. Nobody is forcing ANY of these athletes to compete. They are ADULTS. Young adults, but adults nonetheless. They should be able to make adult decisions. Life often times requires one to make a tough decision. Make the decision and live with the consequences.

Well, if a student is on campus he or she has the opportunity to social distance, wear a mask, and mitigate their risk on his/her own. If football, although they aren’t forced to play, the close contact is unavoidable. It’s inherent with the sport and the student/athlete can do nothing to mitigate the risk. That’s the difference.

 

[BogeyVol]

To me, liability claims would seem easily negated by a good lawyer.

Even if you buy the new found concerns over unlikely but possible complications from covid-19, playing football this season should come down to these issues:

1. Are football players more likely to contract the disease in a regulated and monitored situation as a member of a football program conditioning, practicing and playing the sport, OR are they more likely to contract as a member of the general public with less monitoring of contact?
2. If they do contract covid-19, is the care they get going to be better outside that provided by the university and the football program?
3. Are they more likely to suffer the possible cardiac and pulmonary complications from covid-19 if football were to be played?

I believe the answer is clear that there is less, not more, danger that student athletes contract the virus, and if they get it, they are better cared for if they are under the umbrella of care provided by the universities, and are in more danger outside it.

Just my dos centavos...

 

[dobre_shunka]

Well, if a student is on campus he or she has the opportunity to social distance, wear a mask, and mitigate their risk on his/her own. If football, although they aren’t forced to play, the close contact is unavoidable. It’s inherent with the sport and the student/athlete can do nothing to mitigate the risk. That’s the difference.

And football players can socially distance by opting to not play this season with no negative ramifications.

To those players who want to play, let them. To those who don't, as you pointed out no one is forcing them.

 

[BigOrangeMojo]

The liability issues aren't just limited to the 85 guys on the team but to the entire campus population. Let's say you have 8-10 players who contract COVID during a game against Bama. After the Vols beat Bama, there's a huge celebration in the end zone and parties on/near campus after that game. The 8-10 players are fine and show no ill effects but within a couple of weeks, you have several thousand people on/near campus who have contacted COVID. As you would expect, 95-98% show no major effects however...

1. 2%-5% of several thousand is still a lot of people
2. Some of the 95% feel a whole lot worse once they know they could be in a class action lawsuit

Obviously, there are some legal hills to climb; however, the $$$$ magnitude of a "super spreader" event is what gives some schools pause

 

[BogeyVol]

The liability issues aren't just limited to the 85 guys on the team but to the entire campus population. Let's say you have 8-10 players who contract COVID during a game against Bama. After the Vols beat Bama, there's a huge celebration in the end zone and parties on/near campus after that game. The 8-10 players are fine and show no ill effects but within a couple of weeks, you have several thousand people on/near campus who have contacted COVID. As you would expect, 95-98% show no major effects however...

1. 2%-5% of several thousand is still a lot of people
2. Some of the 95% feel a whole lot worse once they know they could be in a class action lawsuit

Obviously, there are some legal hills to climb; however, the $$$$ magnitude of a "super spreader" event is what gives some schools pause

Prove the campus population was more likely to get it as a result of being on campus rather than living their unrestricted lives off campus. As we are told daily, it is highly contagious and already everywhere. And why stop with covid-9? The flu can be deadly - and is - for otherwise healthy individuals as well every year. Are they liable for it also?

 

[vol66]

Let’s just do the opening argument.

Your Honor, ladies and gentlemen of the jury...

The SEC, in the midst of COVID 19 ravaging their geographic footprint, decided to soldier on. Even after two power 5 conferences decided against it.

The member institutions of the SEC were negligent and the NCAA was powerless to stop them.

In short, they put money first and the health and safety of the players and coaches second.

On behalf of the Saban family, we ask that you find the SEC and the NCAA guilty.

 

[Purple Tiger]

And no I’m not a lawyer I’m a physician that serves on the advisory board of a large malpractice carrier

 

[volfan51128]

Proving you got COVID at a packed football stadium is like proving to caught Syphilis while riding all the hookers bare back on Main Street. lol Could be any of them...right? bahahahahahahahah

 

[BigOrangeMojo]

Prove the campus population was more likely to get it as a result of being on campus rather than living their unrestricted lives off campus. As we are told daily, it is highly contagious and already everywhere. And why stop with covid-9? The flu can be deadly - and is - for otherwise healthy individuals as well every year. Are they liable for it also?

It just takes one activist judge or one emotional jury to negate everything you just said. It's not a coincidence that the conferences that are located in jurisdictions with activist judges have postponed the season. While it shouldn't be that way, you'd get 2 completely different answers if you applied my scenario in California vs Tennessee.

 

[Rasputin_Vol]

One of the things I don’t understand is the issue of these universities being worried about liability.

1. The problem would seem to be that you have to prove where they got the virus, which I would think is impossible.

That’s why I don’t get the liability thing.

How the heck do you prove where, when and how the virus was acquired so as to claim that the school (or whomever) is responsible.

but....

2. You’d have to prove “damages” somehow. So, I don’t know what you could get awarded if you never even displayed symptoms or that you were never hospitalized or that you never had to pay for any of the medical care you received. You didn’t miss work, so you don’t have lost wages.

And if the claim is that others got sick because of you, it would seem that you would have to prove that as well. And that individual would be the one to have to file the lawsuit

The only way I think you’d be awarded anything significant is if you did have a significant medical problem as a result and for those under 23, that’s going to be extremely unlikely. But, that person would still have to prove how they got the virus

Maybe, there is something I am missing

The lawyers can always say that the universities didn't do X or Y or some combination of other items to ensure the safety of the players. Or comeback and say that cancelling the season would have been the more pragmatic thing.

 

[MAUSERWERKE]

One of the things I don’t understand is the issue of these universities being worried about liability.

1. The problem would seem to be that you have to prove where they got the virus, which I would think is impossible.

That’s why I don’t get the liability thing.

How the heck do you prove where, when and how the virus was acquired so as to claim that the school (or whomever) is responsible.

but....

2. You’d have to prove “damages” somehow. So, I don’t know what you could get awarded if you never even displayed symptoms or that you were never hospitalized or that you never had to pay for any of the medical care you received. You didn’t miss work, so you don’t have lost wages.

And if the claim is that others got sick because of you, it would seem that you would have to prove that as well. And that individual would be the one to have to file the lawsuit

The only way I think you’d be awarded anything significant is if you did have a significant medical problem as a result and for those under 23, that’s going to be extremely unlikely. But, that person would still have to prove how they got the virus

Maybe, there is something I am missing

I am a lawyer but not a litigator, so this is just my "back of the envelop" analysis.

Establishing causation would be a challenge, but not impossible. Generally, whether an act or omission "caused" damage is one for a jury to decide. With respect to Covid and football players, claims could well take the form of class action litigation. And the potential plaintiff class would not necessarily be limited to football players. One of the big problems the decision makers face is that, unlike pro athletes, you cannot put college players in a bubble. They will be going to class, going to parties, and interacting with other students. Since the players will be traveling to and from games and potentially contracting the virus at school and at games, the players become a potential vector for disease transmission, even if the player himself never gets seriously ill.

So, one could envision a scenario where there is a campus outbreak at say....Tennessee, shortly after a football game. The plaintiffs assert that those infected became infected due to interaction with football players who have been traveling to other potential "hot" sites. Yes, they would have to "prove" this. All that really means is they have to get a jury to accept the argument, which would be backed up by some degree of expert testimony. And yes, there will be expert testimony going the other way. But it's the jury's decision.

Even if such litigation ultimately fails, it will be tremendously expensive and distracting to defend. Add to that the possible reputational damage to the university. Remember, litigation is a matter of public record., and the plaintiffs get to see every University message, voice mail, and email that is potentially relevant to their claim. These kinds of informal communications often contain information that is damaging, or at least highly embarrassing.

No administrator in his right mind wants to go there.

 

[RobertPellitt]

One of the things I don’t understand is the issue of these universities being worried about liability.

1. The problem would seem to be that you have to prove where they got the virus, which I would think is impossible.

That’s why I don’t get the liability thing.

How the heck do you prove where, when and how the virus was acquired so as to claim that the school (or whomever) is responsible.

but....

2. You’d have to prove “damages” somehow. So, I don’t know what you could get awarded if you never even displayed symptoms or that you were never hospitalized or that you never had to pay for any of the medical care you received. You didn’t miss work, so you don’t have lost wages.

And if the claim is that others got sick because of you, it would seem that you would have to prove that as well. And that individual would be the one to have to file the lawsuit

The only way I think you’d be awarded anything significant is if you did have a significant medical problem as a result and for those under 23, that’s going to be extremely unlikely. But, that person would still have to prove how they got the virus

Maybe, there is something I am missing

1. It is not impossible to prove. Think of this scenario, the UT student population has contracted the virus at, let's make up a percentage, say 5%. The football team has a virus rate of say 25%, well its pretty likely that football had a disproportionate rate compared to other students. Compare that to another football team, let's say Alabama, that Tennessee played. It also has the same disproportionate rate and it is logical that football was the cause. Multiply that by other football teams and you have causation, There is a term of art in the law, res ipsa loquitur, it means the thing speaks for itself. This would be especially true if a student athlete can show that the school did not follow CDC guidelines and/or its own policy. Think about that, have you tried to apply the CDC standards, it changes almost daily and it is very hard to follow and comply with. So think about doing this for an entire Athletic Department. It will not be easy.

I do agree, somewhat with Saban, it may be that it could be safer if all the standards and policies are followed. But that is certainly a big IF. Hard to do.

2. You are correct damage is an essential element to a negligence case. This is the new scenario that caused the Pac-12 and Big 10 to cancel their season. In rare cases the virus causes (potentially) a serious heart condition. So think of someone like Henry T, that has a very bright financial future. He contracts the virus and it causes this heart condition and it prevents him from playing in the NFL for life. If that situation plays out the damage component is very significant. Candidly that is an extreme case and the heart condition is rare and, as I understand it (I am not a doctor) it comes from a lack of treatment from the virus., BUT if it does happen and Henry T could prove it was obviously contracted from playing football and UT failed to diagnosis it properly and treat it.............. well we are talking millions of dollars for him alone. Add one or two more and it is devastating. This is why small colleges/universities canceled initially, the risk reward is way too high for them. Maybe not for the SEC, but we will see.

I fully expect waivers and releases to be mandated that try to disclaim liability. Those will only be as good as the work the universities and SEC implement to keep these kids safe. It also raises other legal issues as to whether these student-Athletes are now employees or independent contractors and what do they get for signing the waivers that was different than what they got before they had to sign them. So it makes sense that some conferences and schools have chosen not to answer these questions, it is very complicated. A lot of legal and moral issues to take on. So it is not really easy just to say there is no liability because we don't know where you got it from. There are other avenues to prove it and then there is the public relations nightmare of being in a lawsuit with your former players, just a bad look all together.

 

[MAUSERWERKE]

1. It is not impossible to prove. Think of this scenario, the UT student population has contracted the virus at, let's make up a percentage, say 5%. The football team has a virus rate of say 25%, well its pretty likely that football had a disproportionate rate compared to other students. Compare that to another football team, let's say Alabama, that Tennessee played. It also has the same disproportionate rate and it is logical that football was the cause. Multiply that by other football teams and you have causation, There is a term of art in the law, res ipsa loquitur, it means the thing speaks for itself. This would be especially true if a student athlete can show that the school did not follow CDC guidelines and/or its own policy. Think about that, have you tried to apply the CDC standards, it changes almost daily and it is very hard to follow and comply with. So think about doing this for an entire Athletic Department. It will not be easy.

I do agree, somewhat with Saban, it may be that it could be safer if all the standards and policies are followed. But that is certainly a big IF. Hard to do.

2. You are correct damage is an essential element to a negligence case. This is the new scenario that caused the Pac-12 and Big 10 to cancel their season. In rare cases the virus causes (potentially) a serious heart condition. So think of someone like Henry T, that has a very bright financial future. He contracts the virus and it causes this heart condition and it prevents him from playing in the NFL for life. If that situation plays out the damage component is very significant. Candidly that is an extreme case and the heart condition is rare and, as I understand it (I am not a doctor) it comes from a lack of treatment from the virus., BUT if it does happen and Henry T could prove it was obviously contracted from playing football and UT failed to diagnosis it properly and treat it.............. well we are talking millions of dollars for him alone. Add one or two more and it is devastating. This is why small colleges/universities canceled initially, the risk reward is way too high for them. Maybe not for the SEC, but we will see.

I fully expect waivers and releases to be mandated that try to disclaim liability. Those will only be as good as the work the universities and SEC implement to keep these kids safe. It also raises other legal issues as to whether these student-Athletes are now employees or independent contractors and what do they get for signing the waivers that was different than what they got before they had to sign them. So it makes sense that some conferences and schools have chosen not to answer these questions, it is very complicated. A lot of legal and moral issues to take on. So it is not really easy just to say there is no liability because we don't know where you got it from. There are other avenues to prove it and then there is the public relations nightmare of being in a lawsuit with your former players, just a bad look all together.

And I would add: it's not just the players who could be potential claimants. I tend to think that Saban is correct that the players themselves are arguably safer playing than they would otherwise be. But the players will be interacting with other students on and off campus. Going to parties, going to bars (and yes, hopefully going to class). So the potential claimant class could very well be all of the other students who have contact with players.

The way I see this playing out? With all the students coming back to campus, there will be outbreaks. The SEC, ACC and Big12 may well start the season, but due to numerous outbreaks on college campuses, the campuses will be closed in favor of remote only learning. When that happens, the football season is kaput, as no college is going to require the players be on campus when everyone else is sent home. JMHO.

 

[BeardedVol]

My mother used to be a court reporter. She was working one trial where a guy sued Krogers because he was walking down an aisle and a can of biscuits popped open, startling him, and SIX MONTHS LATER he had a heart attack. Krogers paid him $10,000 to go away.

 

[Rasputin_Vol]

Clay Travis, who posts on this forum as @evillawyer, had a short string of tweets today confirming your understanding and lambasting those who consider this to be an issue.

Interesting...

 

[ClockworkOrange]

Hmmmm....calling my mother a liar?

 

[sjt18]

One of the things I don’t understand is the issue of these universities being worried about liability.

1. The problem would seem to be that you have to prove where they got the virus, which I would think is impossible.

That’s why I don’t get the liability thing.

How the heck do you prove where, when and how the virus was acquired so as to claim that the school (or whomever) is responsible.

but....

2. You’d have to prove “damages” somehow. So, I don’t know what you could get awarded if you never even displayed symptoms or that you were never hospitalized or that you never had to pay for any of the medical care you received. You didn’t miss work, so you don’t have lost wages.

And if the claim is that others got sick because of you, it would seem that you would have to prove that as well. And that individual would be the one to have to file the lawsuit

The only way I think you’d be awarded anything significant is if you did have a significant medical problem as a result and for those under 23, that’s going to be extremely unlikely. But, that person would still have to prove how they got the virus

Maybe, there is something I am missing

Reasonable assessment. If liability can be established for this then why not the flu? Why not the common cold? Why not an auto accident on the way to school after spring break?

The idea that some have that we can have a society or lives worth living without risks has taken root... and will leave us miserable, not free, and unhappy. Every good thing we enjoy is at some point the product of risks assumed by someone. You cannot have the "economic security" some demand without destroying the risk taking... that produces the economic wealth they claim to want to protect "for all". There are risks to football not just from Covid but from the game itself. The normal risks of a life altering injury are astronomically higher than the risks that they'll have even a temporarily severe Covid case.

This is insanity. It really is. Possibly predictable if you've observed our cultural shift over the last 40-60 years... but still just plan nuts.

 

[RobertPellitt]

And I would add: it's not just the players who could be potential claimants. I tend to think that Saban is correct that the players themselves are arguably safer playing than they would otherwise be. But the players will be interacting with other students on and off campus. Going to parties, going to bars (and yes, hopefully going to class). So the potential claimant class could very well be all of the other students who have contact with players.

The way I see this playing out? With all the students coming back to campus, there will be outbreaks. The SEC, ACC and Big12 may well start the season, but due to numerous outbreaks on college campuses, the campuses will be closed in favor of remote only learning. When that happens, the football season is kaput, as no college is going to require the players be on campus when everyone else is sent home. JMHO.

If they are kept on campus or put in a bubble like some have advocated for, are they really student-athletes anymore? Hard to for me to understand how they would be.

 

[Mccage]

I would think somewhere there has been a football/basketball/etc player who has gotten the flu or something similar and been hospitalized. Maybe I have missed it, but I have never heard of someone in that situation suing a university, so I am not sure how this would be any different.

Or broke bones, torn ACL, pulled hamstring, or even getting their feelings hurt.

 

[BeardedVol]

Hmmmm....calling my mother a liar?

If that's the story she told you, then yes she was not being truthful.

If your mother, a court reporter, was able to tell you about the case, then it was not settled prior to there being court record of the case, of which there are none.

A lawsuit so comically frivolous, actually being settled with Kroger paying out, would be reported on given Kroger is a publicly traded company.

 

[BogeyVol]

Reasonable assessment. If liability can be established for this then why not the flu? Why not the common cold? Why not an auto accident on the way to school after spring break?

The idea that some have that we can have a society or lives worth living without risks has taken root... and will leave us miserable, not free, and unhappy. Every good thing we enjoy is at some point the product of risks assumed by someone. You cannot have the "economic security" some demand without destroying the risk taking... that produces the economic wealth they claim to want to protect "for all". There are risks to football not just from Covid but from the game itself. The normal risks of a life altering injury are astronomically higher than the risks that they'll have even a temporarily severe Covid case.

This is insanity. It really is. Possibly predictable if you've observed our cultural shift over the last 40-60 years... but still just plan nuts.

Amen. This has been a point I have been making ever since the question of liability came up. This is a virus. The only big difference is here is that it is a novel virus that has everybody freaked out. Strep and the flu both can cause myocarditis... Why is this virus at such a revered status? Yep, it's bad, but how did we get to the point of threatening to litigate transmission of a contagious virus that is exists literally everywhere right now? If that were the case, then can't everyone who contracted it create one ginormous class action suit against... Who?