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At Iowa, COVID-19 'pledge' signed by athletes was not a waiver of legal rights, experts say

Mark Emmert
Hawk Central

IOWA CITY, Ia. — University of Iowa athletes who returned to campus for voluntary workouts this summer did not forfeit any legal rights when they signed a “pledge” promising to take steps to limit their risks of contracting the new coronavirus, experts who reviewed the document told the Register this week.

Similar forms are being signed by college athletes across America, and on some campuses have come under scrutiny for language that indicates the students are relinquishing their right to sue in the event that they are diagnosed with COVID-19. The issue also came to light at President Donald Trump’s June 20 rally in Oklahoma, where attendees were required to explicitly agree not to take legal action in the event of a COVID-19 diagnosis.

But at Iowa, the “student-athlete acknowledgement on return to campus” is exactly what athletic director Gary Barta said it would be, said Jonathan Ziss, a partner in the Goldberg Segalla law firm in Philadelphia who has been scrutinizing the language in documents related to COVID-19.

“It’s sort of an assumption of risk. ‘You know that this problem exists. We want you to acknowledge that this problem exists. Not just for our benefit, but for your own benefit, so that you’re going into this with your eyes open, that there’s an unavoidable risk,’” Ziss said after examining Iowa’s two-page form.

“It’s treating their student body with respect and with this sense that they’re mature enough to take ownership and responsibility for behaving right. It’s not a risk-shifting mechanism, at least not overtly like the Trump rally.”

Football players were the first athletes to return to campus at Iowa on June 8, beginning a series of voluntary workouts. Others have joined them in the weeks since. All of them were asked to sign the document that Barta called a “pledge,” agreeing to be tested for COVID-19, to practice standard mitigation efforts like wearing masks where appropriate, washing hands frequently and social distancing.

A university spokesman told the Register on Tuesday that no athlete has declined to sign the pledge. Failure to do so would have prohibited them from participating in the voluntary workouts.

So far, Iowa has conducted 443 COVID-19 tests on athletes, coaches and other staff members in the department. As of Monday, 25 of those came back positive, although the university is not specifying how many involved athletes.

Ziss said it’s noteworthy that Iowa’s form includes the word “expectations” and not “regulations” or “prohibitions.”

"Expectations" was also the word Barta used last month when he told reporters about the document. He indicated there was a similar form for staff members.

“We’re going to ask them to sign a pledge of expectations as it specifically relates to this virus,” Barta said. “It’s just going to say things like ‘I understand that the decisions I make outside of our facilities are really important for my teammates and myself.’”

Iowa coach Kirk Ferentz's football players returned to campus last month with a new wrinkle. They were asked to sign a two-page "pledge" promising not to put themselves or their teammates at greater risk for COVID-19.

Elizabeth Tippett, a professor of law at Oregon who specializes in ethics and employment law, also said Iowa’s document didn’t include “waiver language” that she’s seen elsewhere.

“They’re having them agree to specific behaviors,” she said.

“If the athlete did something that was very reckless, that was contrary to what they said they would be doing, you could imagine a document like this would be very relevant. They’re trying to reduce risks to athletes. But these documents always have legal implications one way or another.”

Outgoing Ohio State President Michael Drake was forced to defend the so-called “Buckeye Pledge” during a U.S. Senate committee meeting two weeks ago, being repeatedly questioned about whether it was tantamount to a waiver of legal rights. He denied that it was.

But at Southern Methodist University, the Dallas Morning News reported June 15 that athletes were instructed to sign a document absolving the private university of liability for anything related to COVID-19.

The range of responses shows how quickly the legal scenarios are evolving when it comes to COVID-19, Ziss said. Many businesses, such as barbershops and gyms, are developing documents for customers to sign. Some of them merely ask the person to acknowledge that they haven’t been exposed to the coronavirus and aren’t feeling any symptoms. Others go further and require people to waive legal rights.

“We’re seeing this more and more as the government and institutions struggle to put in place the goals of returning to some sort of functionality and also providing protection for the institutions,” Ziss said.

Iowa’s form concludes with a warning that “failure to meet these expectations may result in the immediate revocation of building access privileges as well as corrective action.”

It also states: “These expectations may be modified at any time with appropriate notice and based on public health guidance.”

Mark Emmert covers the Iowa Hawkeyes for the Register. Reach him at memmert@registermedia.com or 319-339-7367. Follow him on Twitter at @MarkEmmert.

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