To play or not to play, that is the question. 

This is the immense dilemma facing college football as one of the country’s most popular sports finds itself, not unlike Hamlet, staring into the void as summer lurches towards fall. Further, if you play, which is what by now we know the SEC, ACC and Big 12 hope to do, how do you play in the safest way possible for all involved? 

The bulk of the discussions this week have focused on two questions. 

First, what do science and medical professionals tell us about the viability of football this autumn? 

Second, what impact and risk, from both a human and legal standpoint, is there to conferences that conclude it is safe to play, given the conclusion by 2 powerful conferences that it is not? Put differently, if 3 of the Power 5 conferences elect to play, you can trust they have confidence, both in the medical science and their safety protocols, to defend that choice. 

SEC Commissioner Greg Sankey certainly knows this, which is why he was plainspoken Tuesday morning in answering whether the SEC would go it alone and play if the other Power 5 leagues bailed on the fall season because of the COVID-19 pandemic. But as of Thursday evening, the ACC and Big 12 seem prepared to proceed toward playing this fall, which means that for now, there still might be college football, in some capacity, this autumn. What capacity will likely depend on COVID-19 numbers in each geographic conference area moving forward, the advice of the medical professionals, from day-to-day treating physicians and internists to epidemiologists, advising each league, and the safety precautions in place at each program and league.

For their part, the players — who in addition to demanding a voice in social justice movements this offseason have again demanded the chance to organize collectively — want the chance to play, with safety measures in place. The #WeWantToPlay movement on social media was the latest evidence of the players attempting to come together and harness their collective power as the billion-dollar industry’s labor force. 

The players’ call championing the desire to play — and all the financial opportunity that accompanies it, as Joe Burrow reminded the world this week with the tweet above — was much more well-received than the largely muted response among rank and file college football fans to their calls for a voice on issues of race and social justice.

That isn’t particularly fair, but it speaks to the passion fans have for the game itself. It also speaks to the billions of dollars at stake, both to the many college towns and small businesses that rely upon the sport as an income stream and the universities that fund not just million-dollar celebrity status coaches salaries but whole athletic departments and new chemistry buildings on the backs of the players’ efforts. It also speaks to the awesome resolve of the players, who relish the opportunity football provides and, you’d think, the joy it gives to other people who could use a little right now.

Keep in mind, these are the same players who, if the decision is made to play, will have to endure rigorous testing protocols, functional quarantines, virtual learning and the extreme challenge of largely forgoing the traditional collegiate experience just for the chance to play a game. And yet the bulk of the players are, nobly, willing to do so. 

Some have even suggested they’d sign a liability waiver to do so, trusting their athletic departments, medical staffs and perhaps a loosening of NCAA eligibility rules for players who opt-out to take care of the rest.

The question of liability waivers for players and coaches is particularly interesting. The idea is simple enough. Everyone who wants to play, coach, or be involved in college football this autumn (or this spring?) would, in theory, sign a legal document stating that (1) he or she assumes the risk of contracting COVID-19 through their participation and (2) agrees that the league, college or even venue, would not be liable for any COVID-19 related harms.

One document that releases conferences, universities and athletic departments from any potential claims that might arise related to contraction of and infection and complications related to COVID-19 from participating in college football? Could that be the key to playing in 2020?

That sounds nice on paper, but the legal reality is liability waivers are much more complicated, and not just because of the ever-evolving and in truth, still undetermined science as it relates to the long-term impact of COVID-19 on those infected.

Liability waivers are, of course, nothing new in the sports and entertainment industry. 

Tickets to sporting events have long been accompanied by the assumption of certain risks and liabilities, such as the obvious example of being hit with a foul ball at a baseball game. Everyone from a parent whose child plays youth sports to a family that visits a kids gym or go-kart track has signed a liability waiver.

The use of liability waivers is widespread. The dirty little secret is that their enforceability is not. 

State laws on the validity and enforceability of liability waivers vary dramatically from state-to-state. In some states, waivers are generally accepted and if a parent signs for a child, the waiver is enforceable. In other states, waivers can be enforced, but certain types of liability, such as grossly negligent conduct (an extreme and hopefully unlikely, but illustrative example would be hiding a positive test for a star player and letting him play, exposing others) can’t be waived. In other states, liability waivers are disfavored as a matter of public policy.

In Florida, for example, the law on liability waivers is that the waiver must be in clear, unequivocal language to be enforceable. Further, liability waivers in Florida are unenforceable to disclaim against intentional or reckless conduct. Some attorneys might tell you that means in Florida, all you have to do is put the COVID-19 waiver in clear, unequivocal language and avoid reckless behavior. But the definition of what constitutes “reckless conduct” varies, and smart plaintiffs lawyers will be waiting to suggest playing football in the middle of a global health pandemic is per-se reckless. That hypothetical alone should raise red flags as to how thorny the law around liability waivers can be. 

Georgia courts tend to follow Florida, though they suggest that waivers can, at times, violate public policy, especially when “the consideration for the waiver contract is contrary to good morals and the law.” Is playing football for an academic scholarship in the middle of a global pandemic contrary to good morals? That’s a question some plaintiff’s lawyers might be eager to debate.

Tennessee had long favored expansive liability waivers, but a recent decision from their state Supreme Court changed that, noting that “bargaining power and leverage” will now be key considerations in determining what is enforceable. That’s interesting in the college sports context, especially if the NCAA elects to punish players who opt-out by taking away eligibility. 

In other words, a brief review of the law on liability waivers in SEC states shows that even in one conference, state laws can vary, sometimes dramatically.

Another thorny issue with liability waivers is courts tend to uphold them when they insulate organizers (universities, conferences, athletic departments, venues) from risks inherent to the activity.

Think back to my foul ball example. Courts usually shield teams and ballparks from foul ball injury liabilities because presumably, fans are aware of that risk and are warned through their game tickets of that risk. As long as stadiums provide netting and protection consistent with industry standards, the waivers typically insulate from the rest.

In fact, the foul ball example — while about fan assumption of risk and not players — speaks to how liability waivers can work even when netting isn’t up to industry standards. For example, the Boston Red Sox recently avoided liability thanks to assumption of risk waivers despite the fact that the netting at Fenway Park wasn’t as large, from a stadium design perspective, as industry standards demand.

But how would waiver law apply specifically to college football players?

Naturally, there are risks associated with playing football, from being injured on any given play to long-term risks like CTE and concussions. Those are “situational” risks that the law uses waivers to shield businesses from generally. That doesn’t really apply to COVID-19, an illness that does not discriminate between the world on the field and off it. Courts might not like the idea of enforcing such a waiver.

Finally, there’s the possibility courts will simply reject COVID-19 waivers for public policy reasons. It has been 100 years since there was a global pandemic, and in 1918, liability waivers weren’t widespread. That means courts simply haven’t considered whether liability waivers are enforceable in the context of a pandemic, or whether such a waiver would be void as against public policy.

It is unclear whether a COVID-19 waiver relieving an entity of liability for exposure on a football field or practice field would be enforceable.

In the wake of COVID-19, day-to-day activities, such as going to the grocery store or seeing a movie in theaters, now have an increased level of danger. From a public policy perspective, it is possible that liability waivers in this context might be deemed enforceable so that these non-essential businesses can operate with some level of protection. But would that extend to football games and the players — who aren’t compensated — playing them? That might be a much more difficult sell. 

What is clear is that increasingly, courts weigh public policy considerations and bargaining leverage heavily when assessing the legality of waivers. 

College football players, who have no players organization, aren’t allowed to collectively bargain or unionize. They play for a scholarship, Friday night pizza money and the relatively minuscule chance of reaching the NFL. They do this while being the labor force that rakes in billions for businesses and universities alike. Under the law then, they have very little bargaining power. Allowing them to opt-out without the loss of eligibility might alter that analysis. But at present, the lack of bargaining power, coupled with the indisputable science that COVID-19 spreads more consistently in either crowded settings (an issue if fans are asked to sign waivers as a condition of stadium entry, an idea being bandied about in the NFL)  or settings involving high levels of physical contact, the law and the science might not be on the side of sports on the question of liability waivers. 

In the final analysis, while waivers seem like a simple and ideal way to protect leagues and colleges, the reality is much more complicated. In a sad way, that makes sense, because what’s clear is nothing about having college football in 2020 is going to be easy.