COLUMBUS — Upon their return to the Woody Hayes Athletic Center, Ohio State football players put pen to paper.
Not only as high school seniors when they signed national letters of intent, but again in June while signing coronavirus waivers.
The two-page acknowledgment of risk document, first obtained by The Columbus Dispatch, is a window into a new world for intercollegiate athletics, where lawyers and legalese could be as indispensable as a mobile, strong-armed quarterback.
The seven-paragraph Buckeye Pledge outlines the risks involved with voluntary workouts, detailing mandatory guidelines athletes must adhere to or perhaps be asked to stop participating on campus. Players, however, would not lose their athletic scholarships.
Athletes were required to sign the document to participate. A parent or guardian signed for those under 18 years of age.
“As a member of Buckeye Nation, I know that I must take steps to stay well in order to protect others and promote a safe return to campus for all Buckeyes,” it reads. “Because of this, I take the pledge to take responsibility for my own health and help stop the spread of COVID-19.”
It cautions that despite Ohio State following coronavirus guidelines issued by the Centers for Disease Control and Prevention, “I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.”
The protocols, which were implemented by the university, include agreeing to coronavirus testing and self-quarantining if testing positive, wearing a mask, practicing social distancing, reporting possible coronavirus exposures, monitoring coronavirus symptoms, and obtaining a flu vaccine.
An Ohio State spokesman declined to say if any players, coaches, or staff members have tested positive.
“The university is not sharing cumulative information publicly as it could lead to the identification of specific individuals,” an athletic department statement said.
Ohio State athletic director Gene Smith told reporters in May he believed the controlled environment and testing in athletic facilities gave players the safest possible area to be while preparing for the season. He told ESPN Sunday the waiver is intended to be educational, not to protect OSU from liability should an athlete contract the coronavirus.
‘That’s why we call it a pledge,” Smith told ESPN’s Heather Dinich. ‘We don’t look at that as a legal document. It’s a Buckeye pledge. Allow us to help you so that if we face a situation, our trainers, our strength coaches, our coaches, or any athletic administrator sees a student-athlete not wearing a mask or not social distancing, we can say, ‘Hey, you made a commitment. You signed a pledge. Your parents signed a pledge. Your parents are a part of this.’”
Bulldog attorney Tom Mars, who ran roughshod over Ole Miss and the NCAA’s transfer rules, obtaining immediate eligibility for high-profile transfers Shea Patterson and Justin Fields, made his beliefs clear: The decision to reopen facilities is monetary, not because conclusive information about players’ health and well-being has been learned.
“First of all, let’s not kid ourselves,” Mars told The Blade, “the decisions of administrators to reopen athletic facilities to do anything beyond individual workouts isn’t based on a belief that they can create a safe, controlled environment for student-athletes who play football — the ultimate team contact sport. These decisions weren’t based on making the health and welfare of student-athletes a top priority. They were made to avoid an otherwise inevitable financial catastrophe for universities which depend on the huge revenues generated by athletics.”
Outgoing Ohio State president Michael Drake announced June 2 the university and Wexner Medical Center is estimating a $300 million loss in revenue. The athletic department is already experiencing financial shortages, with the NCAA tournament payout down significantly because of its cancellation. Stadiums at less than half capacity will add to the revenue decrease.
OSU is addressing the shortfall through cost-cutting and revenue enhancement. The July-August budget calls for over $100 million in cost savings at the university and medical center. Spending reductions between five and 20 percent are required.
The Buckeyes aren’t the only ones asking players to sign waivers before engaging in workouts. Smith actually got the idea from Indiana athletic director Fred Glass. The IU document contains similar language and protocols.
Southern Methodist University’s Office of Legal Counsel required athletes to agree not to hold the school liable for any coronavirus-related illness, waiving their right to litigation.
It’s unclear, though, if the SMU, Ohio State, or Indiana waivers are legally binding.
“From a legal perspective, colleges and universities owe their students a duty to exercise reasonable care,” Mars said. “At this point in time, everyone should understand the risk of being infected with COVID-19 and the importance of practicing social distancing, wearing masks, washing their hands, and sanitizing objects they touch. A student who voluntarily returns to a college campus this fall will presumably be aware of the risk of being infected with COVID-19 and the importance of the standard precautions to mitigate that risk.
“With one important caveat, students who become infected would have little, if any, chance of holding the university legally responsible for not exercising reasonable care. The caveat is this: If the university created a false sense of security by making overly reassuring public statements that aren’t supported by scientific data, such statements could later form the basis for legal claims by students who reasonably relied on those statements in returning to campus and then became infected with COVID-19.”
Mars, whose law firm has offices in Arkansas and Atlanta, chafes at the interpretation of Ohio State’s pledge being called a waiver. By definition, he said, a waiver or release occurs when a person knowingly relinquishes a claim, right, or privilege.
As Mars points out, nothing in the OSU document asks athletes to give up any claims, rights, or privileges.
“The document explicitly makes clear that the student-athlete’s scholarship is not at risk under any circumstances,” he said. “The document does contain an acknowledgment of the well-known risk of being infected with COVID-19 and the importance of exercising appropriate safety precautions. The pledge says nothing that might give student-athletes a false sense of security about the risks of being infected with COVID-19 by participating in athletic activities on campus.
“In my opinion, the Ohio State pledge would be an excellent template for other schools to use when reopening athletic facilities under circumstances where everyone should know and acknowledge the heightened risk this decision creates for participating student-athletes.”
The final paragraph of the pledge reads, “I take my Buckeye Pledge seriously and will do my part to protect Buckeye Nation.”
First Published June 17, 2020, 7:16 p.m.
