COVID-19 Protocols for NCAA Football and the NFL: Does Collective Bargaining Produce Safer Conditions for Players?

Utah Law Review Utah Law Review

Volume 2021 Number 5 Article 2

12-2021

COVID-19 Protocols for NCAA Football and the NFL: Does COVID-19 Protocols for NCAA Football and the NFL: Does

Collective Bargaining Produce Safer Conditions for Players? Collective Bargaining Produce Safer Conditions for Players?

Michael H. LeRoy

University of Illinois at Urbana-Champaign

, [email protected]

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Recommended Citation Recommended Citation

Michael H. LeRoy, COVID-19 Protocols for NCAA Football and the NFL: Does Collective Bargaining

Produce Safer Conditions for Players?, 2021 ULR 1029 (2021). https://doi.org/10.26054/0d-h24h-2yfs

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1029

COVID-19 PROTOCOLS FOR NCAA FOOTBALL AND THE NFL:

DOES COLLECTIVE BARGAINING PRODUCE SAFER CONDITIONS

FOR PLAYERS?

Michael H. LeRoy*

Abstract

My study surveyed all NCAA football programs in Power 5

conferences during the 2020 season to compare their COVID-19 safety

protocols to those in the NFL-NFLPA labor agreement. College protocols

lacked input from a players association. In contrast, the NFL and their

players collectively bargained a seventy-two-page agreement for COVID-

19 protocols. Policies from nineteen college football programs fell far

short of NFL-NFLPA standards, scoring ten to thirty points out of the

forty-five safety points in the NFL labor agreement. College policies were

strongest for symptom checking and cardiac evaluations. However, most

college policies failed to identify players with individual risk factors and

provide them extra medical monitoring; additionally, no college policy

reported using location tracking technology for contact tracing. The

NFLPA also had a whistleblower hotline to report noncompliance with the

labor agreement, but college policies did not. I conclude that collective

bargaining provided NFL football players with superior safeguards

compared to those for college players. Like unionized construction firms,

which have better safety records than nonunion firms, the NFL is safer

than the NCAA for football players because of collectively bargained

practices. This study supports treating college players as employees rather

than amateurs because employment is necessary to form a union.

I. INTRODUCTION

A. Research Question and Overview of Methods and Findings

Do college football players have the same safety protections for the COVID-19

virus as union-represented NFL players,

even though they cannot form a labor

union?

The pandemic produced a natural experiment to determine if a players

and College of Law, University of Illinois at Urbana-Champaign (mhl@illinois.edu).

See NAT’L FOOTBALL LEAGUE, NFL-NFLPA COVID-19 PROTOCOLS FOR 2020

SEASON (2020), https://static.www.nfl.com/image/upload/v1604923568/league/qj8bnhpzrnj

evze2pmc9.pdf [https://perma.cc/BJ27-GDYZ] [hereinafter ADDENDUM] (providing several

policies and protections to union-represented NFL players).

See Nw. Univ., 362 N.L.R.B. 1350, 1352–54 (2015) (rejecting an effort by football

players to form a union under the National Labor Relations Act). The Board declined to

1030 UTAH LAW REVIEW [NO. 5

association produces more comprehensive testing and mitigation procedures than

college football, where conferences and schools unilaterally implemented COVID-

19 protocols.

The virus posed similar risks to both player groups. Therefore,

protocols for infection testing, quarantining, returning to competition, and contact

tracing should have been similar for professional and college players.

To answer my research question, I sent Freedom of Information Act (FOIA)

requests to all fifty-three public universities and colleges in the Power 5 conferences,

and the same request to twelve legal departments of private schools.

My research

strategy aimed to elicit answers, not rejections, under these laws. Thus, I simplified

and limited my requests.

The NCAA has been criticized since the 1970s for transmuting a de facto

employment relationship into a self-enriching amateur athlete model.

My research

assert jurisdiction, noting that while approximately 125 schools comprise the NCAA’s upper

tier of FBS football competition, the NLRA applied to only seventeen private schools.

Allowing only a small fraction of players at these private schools to form a union would

destabilize labor relations and league-based competition in college football. Id. at 1354.

Compare Alan Blinder, Lauryn Higgins & Benjamin Guggenheim, College Sports

Has Reported at Least 6,629 Virus Cases. There Are Many More, N.Y. TIMES (Dec. 11,

2020), https://www.nytimes.com/2020/12/11/sports/coronavirus-college-sports-football.

html [https://perma.cc/R4AD-BZGG] (stating that “[t]esting standards vary from one

conference to the next” and that over 6,600 student-athletes were infected and a number of

games were canceled), with Kevin Siefert, How the NFL Navigated COVID-19 this Season:

959,860 Tests, $100 Million and Zero Cancellations, ESPN (Feb. 12, 2021),

https://www.espn.com/nfl/story/_/id/30781978/how-nfl-navigated-covid-19-season-959860

-tests-100-million-zero-cancellations [https://perma.cc/5GLF-EB7F].

For the list of private and public schools, see infra Table 1.

For my FOIA inquiry, see infra Section III.B.

An early article expressing skepticism about the student-athlete model is Stephen

Horn, Intercollegiate Athletics: Waning Amateurism and Rising Professionalism, 5 J.C. &

U.L. 97, 97 (1978) (“Too often the jockeying for power within the NCAA has reflected the

economic positions between institutions rather than concerns about what should be the basic

purpose of the organization: the protection of student-athletes from unscrupulous actions by

those who would exploit them for their own purposes.”). More recently, research has focused

on the strong comparison of NCAA amateurism to professional employment. See Richard

Smith, The Perfect Play: Why the Fair Labor Standards Act Applies to Division I Men’s

Basketball and Football Players, 67 CATH. U.L. REV. 549 (2018); Sam C. Ehrlich, The FLSA

and the NCAA’s Potential Terrible, Horrible, No Good, Very Bad Day, 39 LOY. L.A. ENT.

L. REV. 77 (2019); Marc Edelman, From Student-Athletes to Employee-Athletes: Why a “Pay

for Play” Model of College Sports Would Not Necessarily Make Educational Scholarships

Taxable, 58 B.C. L. REV. 1137 (2017); Richard T. Karcher, Big-Time College Athletes’

Status as Employees, 33 A.B.A. J. LAB. & EMP. L. 31 (2017); Jay D. Lonick, Bargaining with

the Real Boss: How the Joint-Employer Doctrine Can Expand Student-Athlete Unionization

to the NCAA as an Employer, 15 VA. SPORTS & ENT. L.J. 135 (2015); Michelle A. Winters,

Comment, In Sickness and in Health: How California’s Student-Athlete Bill of Rights

Protects Against the Uncertain Future of Injured Players, 24 MARQ. SPORTS L. REV. 295

(2013); Jeffrey J.R. Sundram, Comment, The Downside of Success: How Increased

2021] COVID-19 PROTOCOLS 1031

broadens the pay-for-play theme of this perennial critique by suggesting that

employee status for college football players would allow them to form a union and

bargain over safety policies related to COVID-19 infections and long-term health

effects arising from this virus.

To measure the differences between pro and college football procedures, I

broke down the NFL’s seventy-two-page COVID-19 agreement into six categories:

(1) symptom screening,

(2) COVID-19 testing,

(3) exposure and positive test

policies,

(4) quarantining,

(5) returning to athletic activity,

and (6) contact

tracing.

I broke these elements into forty-five points. I created a scorecard for each

Power 5 school that replied with usable information. I scored one point for each

school policy that matched an NFL policy.

My scoring system revealed gaps between pro and college football. The NFL

and Power 5 COVID-19 policies and practices were roughly similar for (1) symptom

identification and screening,

though the NFL had more stringent standards; (2)

isolation protocols for players who tested positive,

though the NFL implemented

additional precautions; (3) cardiac screening,

though the NFL specified a more

thorough process; and (4) policies for returning to practice and games,

with the

main similarity being a minimum ten-day period of isolation after a player registered

a positive test.

However, my study revealed significant differences between NFL and NCAA

COVID-19 policies and practices, including (1) criteria for high-risk NFL players,

which included individualized risk categories for the NFL but not college players;

(2) the NFL’s more protective protocols for high-risk players, with suggested

isolation and medical monitoring, essentially treating them like infected players;

(3) the frequency of COVID-19 testing, with some NCAA schools testing as little

as three times per week, compared to daily testing in the NFL;

and (4) contact

tracing in the NFL, enabled by wearable tracking equipment that measured player-

Commercialism Could Cost the NCAA Its Biggest Antitrust Defense, 85 TUL. L. REV. 543

(2010); Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or

Antitrust Recidivist?, 86 OR. L. REV. 329 (2007); Robert A. McCormick & Amy Christian

McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 WASH.

L. REV. 71 (2006).

See infra note 122.

See infra Finding 3, Bullet Point 2; see also ADDENDUM, supra note 1, at 26–27.

See infra Finding 3, Bullet Points 3–6; see also ADDENDUM, supra note 1, at 60–61.

See infra Finding 4; see also ADDENDUM, supra note 1, at 9.

See infra Finding 5; see also ADDENDUM, supra note 1, at 26.

See infra Finding 7; see also ADDENDUM, supra note 1, at 38.

See infra Finding 4, Bullet Point 2 (citing ADDENDUM, supra note 1).

See infra Finding 5, Bullet Point 4 (citing ADDENDUM, supra note 1).

See infra Finding 6, Bullet Point 2 (citing ADDENDUM, supra note 1).

See infra Finding 7.

See infra Finding 3, Bullet Points 1 & 4.

See infra Finding 5, Bullet Point 3.

See infra Finding 4.

1032 UTAH LAW REVIEW [NO. 5

to-player contact on the field and during travel, compared to no policy for wearable

technology contact tracing in college football.

B. Organization of this Article

In Part II, I explain how NCAA football players are unable to form a union and

engage in collective bargaining.

Section II.A shows that college players cannot

bargain collectively with their schools because they are not considered employees,

a legal predicate under applicable labor laws.

Section II.B explores how NFL

players engage in bargaining over their pay and the terms and conditions of their

employment.

In contrast, as Section II.C shows, the NCAA limits player input to

a Student-Athlete Advisory Committee (SAAC), a captive group that compares to

“company unions” in the 1930s, which employers created to forestall union

representation.

Part III describes my research design and methods.

Section III.A applies the

concept of a natural experiment in sports economics to the concurrent development

of COVID-19 policies in union and nonunion football settings in 2020.

This

framework undergirds my research design, which compares pro football safety

policies that were collectively bargained for and similar policies imposed by schools

on college players.

Part IV presents my empirical findings.

In Section IV.A.1, I report the sample

characteristics in Finding 1.

Section IV.A.2 reports Findings 2–9 for COVID-19

testing policies.

The main elements of these findings relate to the checklist of

symptoms (Finding 2),

individualized risk assessment (Finding 3),

daily

screening for symptoms and COVID-19 testing (Finding 4),

quarantine testing and

medical monitoring (Finding 5),

cardiac testing (Finding 6),

criteria for return-

to-activity (Finding 7),

and contact tracing policies and technology (Finding 8).

See infra Finding 8, Bullet Points 2 & 3.

See infra Part II.

See infra Section II.A.

See infra Section II.B.

See infra Section II.C; infra notes 69–70 and accompanying text.

See infra Part III.

See infra Section III.A.

See infra Section III.B.

See infra Part IV.

See infra Section IV.A.1.

See infra Section IV.A.2.

See infra Table 2.

See infra Table 3.

See infra Table 4.

See infra Table 5.

See infra Table 6.

See infra Table 7.

See infra Table 8.

2021] COVID-19 PROTOCOLS 1033

In Finding 9,

I pick out chronological milestones in this testing and treatment

sequence—essentially four key points in structuring prevention, treatment, and

mitigation. These findings provide an overall sense of the effectiveness of college

protocols as compared to the NFL-NFLPA procedures.

Section IV.A.3 compares

scheduling disruptions due to COVID-19 for college and NFL teams.

Following

this timeline, Finding 11 charts the weekly frequency of game postponements and

cancellations in college versus pro football.

Section IV.B enumerates caveats and

limitations in this study.

Part V offers conclusions.

My findings support studies that show the (A)

superiority of worker safety in unionized versus nonunion work settings,

(B)

prevalence of company unions long after the 1930s,

and (C) employment model as

a better way to classify Power 5 football players than as amateurs.

II. NCAA AND NFL PLAYERS: THE EMPLOYMENT BARRIER TO UNIONIZATION

College football players are not employees.

The NCAA classifies college

players as amateurs, meaning they fall outside the definition of an employee.

Thus,

See infra Table 9.

This refers to the collective bargaining agreement between the National Football

League and the National Football League Players Association, a labor union for professional

football players. These parties entered into the NFL-NFLPA COVID-19 PROTOCOLS FOR

2020 SEASON. ADDENDUM, supra note 1.

See infra Section IV.A.3.

See infra Table 11.

See infra Section IV.B.

See infra Part V.

See infra Section V.A.

See infra Section V.B.

See infra Section V.C.

The amateur student-athlete model was upheld recently in two appellate cases that

rejected NCAA player claims that they are employees under the Fair Labor Standards Act.

See Dawson v. Nat’l Collegiate Athletic Ass’n, 932 F.3d 905 (9th Cir. 2019); Berger v. Nat’l

Collegiate Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016). But see Livers v. Nat’l Collegiate

Athletic Ass’n, 2018 WL 3609839 (E.D. Pa. 2018) (denying the NCAA’s motion to dismiss).

The 2020–21 NCAA Division 1 Manual states as follows:

The purposes of this Association are: (a) To initiate, stimulate and improve

intercollegiate athletics programs for student-athletes and to promote and develop

educational leadership, physical fitness, athletics excellence and athletics

participation as a recreational pursuit; . . . [and] (c) To encourage its members to

adopt eligibility rules to comply with satisfactory standards of scholarship,

sportsmanship and amateurism . . . . A student-athlete may receive athletically

related financial aid administered by the institution without violating the principle

of amateurism, provided the amount does not exceed the cost of education

authorized by the Association; however, such aid as defined by the Association

shall not exceed the cost of attendance as published by each institution. Any other

1034 UTAH LAW REVIEW [NO. 5

college players cannot form a union because collective bargaining laws such as the

National Labor Relations Act (NLRA),

Railway Labor Act,

and state collective

bargaining laws,

apply only to employees. Moreover, because the NLRA excludes

all public sector employment relationships, fifty-three of the sixty-five (81%) Power

5 football programs cannot engage in legally sanctioned collective bargaining—a

legal barrier that would moot the possibility of collective bargaining for college

football players unless special legislation were enacted for them.

financial assistance, except that received from one upon whom the student-athlete

is naturally or legally dependent, shall be prohibited unless specifically authorized

by the Association.

NAT’L COLLEGIATE ATHLETIC ASS’N, 2020–21 NCAA DIVISION I MANUAL, art. 1.2(a), (c)

[hereinafter 2020–21 NCAA MANUAL] (emphasis added).

Nat’l Lab. Rel’s. Act (NLRA), ch. 372, 49 Stat. 449 (1935) (codified as amended at

29 U.S.C. §§ 151–69 (2020)). The NLRA defines employee as “any employee . . . unless this

subchapter explicitly states otherwise.” Id. at § 152(3). The same section then excludes “any

individual employed by . . . any other person who is not an employer as herein defined.” Id.

The definition of an employer excludes “any State or political subdivision thereof. . . .” Id.

Thus, players at state universities would need collective bargaining laws in their states to

bargain with their schools over pay and conditions of employment.

An example of a state law that provides for public sector collective bargaining is CONN.

GEN. STATE. ANN., infra note 64. I propose a federal form of NCAA-specific collective

bargaining to address this fractured approach to private- and public-sector collective

bargaining. See infra notes 48, 185.

Ry. Lab. Act of 1926, ch. 347, § 1, 44 Stat. 577 (codified as amended at 45 U.S.C. §

151, Fifth (2020)) (defining an employee as “every person in the service of a carrier . . . who

performs any work defined as that of an employee or subordinate official in the orders of the

Surface Transportation Board now in effect”). The Railway Labor Act (RLA) is relevant to

my discussion of legislating a federal collective bargaining law that would apply only to

NCAA players. See infra note 190, and related discussion. The RLA and its jurisdiction over

carriers in rail and air transport is analogous to college athletics insofar as the law regulates

transport industries that are especially important to the nation’s economy.

E.g., Illinois Educational Labor Relations Act (IELRA), 115 ILL. COMP. STAT. ANN.

5/1–5/21. The IELRA defines an “employee” broadly to include “any individual, excluding

supervisors, managerial, confidential, short term employees, student, and part-time academic

employees of community colleges employed full or part time by an educational employer.”

Id. at 5/2(b) (including exceptions for managerial and confidential employees).

The remaining twelve of the sixty-five Power 5 conference schools are private

institutions: Baylor, Boston College, Duke, Northwestern, Notre Dame, Stanford, Syracuse,

TCU, University of Miami, USC, Vanderbilt, and Wake Forest. Notably, only a smattering

of states provide public-sector collective bargaining. If, for example, football players at

Illinois formed a union under the IELRA, this would leave conference schools without a

public sector collective bargaining law at a competitive disadvantage. Id. Wisconsin repealed

its collective bargaining law for virtually all public sector employees, and its action was

upheld in State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436, 441 (Wis. 2011).

2021] COVID-19 PROTOCOLS 1035

A. College Players Cannot Form a Labor Union Because They Are Not

Employees

The NCAA defines college sports as an activity pursued by “the student body”

that cannot be a part of “professional sports.”

This idyllic status has roots in the

nineteenth-century cultivation of athletic competition to foster Christian character.

The NCAA combines intercollegiate athletics with college degree programs by

strictly designating athletes as amateurs.

Over time, the NCAA has lost touch with

its culture of amateurism—for example, the NCAA continues to declare that college

sports are an “avocation.”

It believes that its educational mission transcends

The purpose of the NCAA is stated as follows:

The competitive athletics programs of member institutions are designed to be a

vital part of the educational system. A basic purpose of this Association is to

maintain intercollegiate athletics as an integral part of the educational program

and the athlete as an integral part of the student body and, by so doing, retain a

clear line of demarcation between intercollegiate athletics and professional sports.

2020–21 NCAA MANUAL, supra note 48, at 1.3.1.

Professor Karen L. Hartman states that:

In the mid-1800s to the early 1900s, sport became increasingly popular in

America. As technology and manufacturing developed, more and more

Americans turned toward sport as a way to fill their newfound leisure time. During

this time, there were several national organizations and important figures that

served to frame sport as a moral endeavor. Specifically, the Young Men’s

Christian Association (YMCA), the Muscular Christianity Movement, Bernarr

Macfadden and the Physical Culture magazine, Theodore Roosevelt, and the

creation of the National Collegiate Athletics Association worked together to

create an enduring myth of the athlete as a moral hero. People were exposed to

this message if they went to church, listened to a Presidential speech, or read a

magazine; these five factors infiltrated sport and morality into numerous aspects

of society. Modern sport, therefore, was incubated by practitioners of the social

gospel during Protestant Christianity’s time of optimistic missionary revival.

Karen L. Hartman, The Rhetorical Myth of the Athlete as a Moral Hero: The Implications of

Steroids in Sport and the Threatened Myth (2008) (Ph.D. dissertation, Louisiana State

University), https://digitalcommons.lsu.edu/cgi/viewcontent.cgi?article=3014&context=gra

dschool_dissertations [https://perma.cc/23SC-JK37]; See Justice v. Nat’l Collegiate Athletic

Ass’n, 577 F. Supp. 356, 361 (D. Ariz. 1983) (quoting NCAA regulations from that time).

See Justice v. Nat’l Collegiate Athletic Ass’n, 577 F. Supp. 356, 361 (D. Ariz. 1983)

(quoting NCAA regulations from that time).

See Bloom v. Nat’l Collegiate Athletic Ass’n, 93 P.3d 621, 626 (Colo. App. 2004)

(“Student participation in intercollegiate athletics is an avocation, and student-athletes

should be protected from exploitation by professional and commercial enterprises.”)

(emphasis added) (quoting 2020–21 NCAA MANUAL, supra note 48, at art. 2.9)).

1036 UTAH LAW REVIEW [NO. 5

commercialism.

A student crosses the amateur boundary by signing a contract to

play a professional sport.

Beginning in the 1950s, and as a result of football-related deaths and injuries,

college football players began to litigate their status as employees.

Some state

appellate courts in workers’ compensation cases viewed NCAA athletes as

employees.

However, this trend gave way to court rulings denying college athletes’

claims for workers’ compensation benefits.

In some instances, state legislation

resolved this ambiguity by excluding college athletes from the workers’

compensation insurance system.

More recently, NCAA athletes have sued under the Fair Labor Standards Act,

seeking a ruling that they are employees. So far, their efforts have failed. Two federal

appeals courts have ruled that the amateur student-athlete model precludes a court

from ruling that NCAA athletes are employees under the Fair Labor Standards Act.

The distinction between amateur and employee is crucial because the right to

form a union and engage in collective bargaining is limited to persons in an

employment relationship. Thus, for players at state universities and colleges, it is

significant that state laws providing public-sector collective bargaining rights are

See Banks v. Nat’l Collegiate Athletic Ass’n, 746 F. Supp. 850, 852 (N.D. Ind. 1990)

(stating that the NCAA organizes amateur intercollegiate athletics “as an integral part of the

educational program and . . . retain[s] a clear line of demarcation between intercollegiate

athletics and professional sports”).

Shelton v. Nat’l Collegiate Athletic Ass’n, 539 F.2d 1197, 1198 (9th Cir. 1976)

(referencing NCAA DIVISION I MANUAL § 12.1.2 (c)).

See, e.g., Univ. of Denver v. Nemeth, 257 P.2d 423, 428 (Colo. 1953) (ruling that a

student-athlete who hurt his back during the team’s football practice qualified as an employee

who was eligible for worker’s compensation benefits because he “engage[d] in football

games under penalty of losing the job and meals” and therefore “playing football was an

incident of his employment by the University”).

See, e.g., Van Horn v. Indus. Accident Comm’n, 33 Cal. Rptr. 169, 170–74 (Cal. Ct.

App. 1963) (holding that the widow and minor children of a student-athlete, who was killed

in a plane crash while returning from a game, were entitled to death benefits under the

California Workmen’s Compensation Act because athletic scholarship was “consideration

. . . paid for services”), superseded by statute, CAL. LAB. CODE § 3352(a)(11) (West 2018),

as recognized in Shephard v. Loyola Marymount Univ., 102 Cal. Rptr. 2d 829, 832–33 (Cal.

Ct. App. 2002).

See Rensing v. Ind. State Univ. Bd. of Trs., 444 N.E.2d 1170, 1174–75 (Ind. 1983);

State Comp. Ins. Fund v. Indus. Comm’n, 314 P.2d 288 (Colo. 1957) (holding that a student-

athlete who was fatally injured while playing in a college football game, was not entitled to

a beneficiary death benefit under the Colorado Workmen’s Compensation Act).

California excludes college players from worker’s compensation. CAL. LAB. CODE §

3352(a)(11) (West 2018) (excluding a student from the definition of “employee” if they

“participat[e] as an athlete in amateur sporting events sponsored by a . . . public or private

nonprofit college, university, or school, who does not receive remuneration for the

participation, other than the use of athletic equipment, uniforms, transportation, travel, meals,

lodgings, scholarships, grants-in-aid”).

See Dawson v. Nat’l Collegiate Athletic Ass’n, 932 F.3d 905 (9th Cir. 2019); Berger

v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016).

2021] COVID-19 PROTOCOLS 1037

predicated on an employment relationship.

More generally, the amateur status of

college athletes led to the futile outcome for football players at Northwestern

University who tried to form a union under the NLRA: The National Labor Relations

Board ended their organizing efforts by declining to assert jurisdiction over cases

involving grant-in-aid football players.

B. Collective Bargaining in Professional Sports

During the Great Depression, Congress enacted the National Industrial

Recovery Act (N.R.A.).

The law aimed to foster collective bargaining between

employers and labor unions.

However, the N.R.A. was a weak law: It allowed

collective bargaining without specifying conditions to require employers to

negotiate terms and conditions of employment with a labor organization.

Employers did not accept that employees should have an independent voice in their

workplace and instead formed company unions.

These employee groups were

E.g., CONN. GEN. STAT. ANN. §§ 31–104.

See Nw. Univ. and Coll. Athletes Players Ass’n, 362 N.L.R.B. 1350 (2015).

Nat’l Indu. Recovery Act (NIRA), ch. 90, 48 Stat. 195 (1933), invalidated by A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).

Edwin E. Witte states that:

[E]ssential provisions of this section—the affirmative recognition of the right of

workingmen to bargain collectively through representatives of their own choice

and the prohibition of interference by employers with the exercise of this right—

are but restatements of principles previously recognized in several acts of

Congress and, earliest of all, by the National War Labor Board during the World

War, when that board was the supreme authority upon industrial relations in a

large part of American industry.

See Edwin E. Witte, The Background of the Labor Provisions of the N.I.R.A., 1 U. CHI. L.

REV. 572, 573 (1934).

Laura J. Cooper expressed that:

Administration of the NIRA by the National Recovery Administration (NRA)

soon revealed the weaknesses of the articulated labor protections in Section 7(a).

Section 7(a) provided no enforcement powers or procedures for selection of

employee representatives. There was no specific list of prohibited employer

actions or requirement for employers to bargain with organizations that

represented their employees. Ambiguities in the Act could be interpreted to

sanction employer-controlled company unions, allow proportional rather than

exclusive representation, and permit individual rather than collective bargaining.

See Laura J. Cooper, Letting the Puppets Speak: Employee Voice in the Legislative History

of the Wagner Act, 94 MARQ. L. REV. 837, 840 (2011).

The Department of Labor’s exhaustive study of 14,725 workplaces summarized the

use of company unions by employers in this way:

1038 UTAH LAW REVIEW [NO. 5

often illusory exercises in worker representation: companies wrote their bylaws and

set their agendas.

Sen. Robert Wagner addressed the failure of the N.R.A. to provide more legal

protection to collective bargaining by introducing the bill that became the National

Labor Relations Act (NLRA).

The goal of this Depression-era law, also called the

[T]heir establishment was most frequently due to the pressure of trade-union

activity . . . [and] were set up entirely by management. Management conceived

the idea, developed the plan, and initiated the organization . . . more than half [of

company unions] performed none of those functions which are usually embraced

under the term “collective bargaining.” Some of these were merely agencies for

discussion. Others had become essentially paper organizations after their primary

function was performed when the trade-union was beaten.

U.S. DEP’T. OF LAB., BUREAU LAB. STAT., CHARACTERISTICS OF COMPANY UNIONS 1935

BULL. 634 199–205 (1937).

General Motors’ Pontiac plan illustrates employer control of this participatory

process:

This provides for voluntary membership of all employees of the manufacturing

department; that is, voluntary for all employees 21 years or more, with at least 90

days of service and at least first papers. These employees choose their

representatives from among the members of their own division with at least one

year’s service. They meet alone, but the factory manager must be notified of all

meetings. Management is present only when requested. The meeting place is

established by the works council subject to the approval of the plant manager. The

company pays the representatives their regular earned rate, prints the ballots for

elections, and elections are held on company time. In addition, the company will

furnish a stenographer for any meeting on request.

The plan emphasizes that membership is voluntary, but it provides that only

members of the employees association have the right to make a complaint to the

works council with reference to wages, hours of labor, working conditions, or

other appropriate subjects. Only members have a right to take out insurance and

to participate in the company savings and investment plans.

. . . In other words, they offer an inducement to the workers to come into their

company union, and say that he cannot be a beneficiary under these plans

otherwise. . . . In cases of disagreement, appeal is possible all the way up to the

general management of the company, who, it is said, ‘will take up the subject for

consideration.’

To Create a Nat’l Lab. Bd.: Hearing on S. 2926 Before the S. Comm. on Educ. & Lab., 73d

Cong. 128 (1934) [hereinafter Nat’l Lab. Bd. Hearing] (statement of Mr. William Green,

Pres. of the Am. Fed’n of Lab).

See id. at 110. Referring to the hearing, Senator Robert Wagner emphasized that:

2021] COVID-19 PROTOCOLS 1039

Wagner Act, was to give employees a voice in determining their wages and working

conditions.

This was to be achieved by providing employees equality of bargaining

power with employers.

Thus, the NLRA provided employees basic collective

bargaining rights—forming a union, bargaining with an employer, and engaging in

concerted activities.

The law spurred growth in union membership, which peaked in 1954 at 34.7%

of the non-agricultural workforce.

However, professional athletes did not engage

in collective bargaining with leagues until the 1960s.

In football, the players

association was involved in protracted antitrust lawsuits that challenged the NFL’s

anticompetitive labor market rules.

The players association also bargained over

Yesterday we had a hearing in the automobile industry and it came out very clearly

that the company union was formed by sending to each worker a constitution and

bylaws telling him, ‘This is now your organization.’ As the result of that an

election was held, and the workers testified that they voted because they knew

very well if they did not vote their jobs were gone.

Nat’l Lab. Bd. Hearing, supra note 70, at 110.

Senator Robert Wagner‘s vision when he introduced the bill that eventually became

the NLRA:

The law has long refused to recognize contracts secured through physical

compulsion or duress. The actualities of present-day life impel us to recognize

economic duress as well. We are forced to recognize the futility of pretending that

there is equality of freedom when a single workman, with only his job between

his family and ruin, sits down to draw a contract of employment with a

representative of a tremendous organization having thousands of workers at its

call. Thus the right to bargain collectively, guaranteed to labor by section 7(a) of

the Recovery Act, is a veritable charter of freedom of contract; without it there

would be slavery by contract.

See 78 Cong. Rec. S3678–20 (daily ed. March 5, 1934) (statement by Sen. Robert Wagner).

Id.

Section 7 of the Act provides: “Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain collectively through representatives of

their own choosing, and to engage in other concerted activities . . . .” 29 U.S.C. § 157 (2019).

DEP’T. OF LAB., BUREAU LAB. STATS., BULL. NO. 2070, HANDBOOK OF LAB. STAT.

412 tbl. 165, col. 7 (1980).

Baseball was the first sport to enter into collective bargaining. See Marvin Miller:

Founding Executive Director, 1966–1982, MAJOR LEAGUE BASEBALL PLAYERS,

https://www.mlbplayers.com/marvin-miller [https://perma.cc/Y3VP-B6UD] (last visited

July 9, 2021) (“In 1968, Miller led a committee of players that negotiated the first collective

bargaining agreement in the history of professional sports.”).

Mackey v. NFL, 543 F.2d 606, 620–21 (8th Cir. 1976) (finding that the “Rozelle

Rule”—which required a team acquiring a free-agent to compensate the former team—

constituted an anti-trust violation under the Sherman Act). The opinion also noted that

football players entered into formal labor agreements, the first ran from July 15, 1968, to

February 1, 1970. Id. at 610.

1040 UTAH LAW REVIEW [NO. 5

other issues, including a player’s right to file a grievance related to their injuries.

When a Minnesota Vikings offensive lineman, Korey Stringer, died from heat-

related medical conditions in training camp in 2001,

the NFL and NFLPA labor

agreement had several provisions concerning player safety.

Another lawsuit, filed

by retired players in 2011, alleged that the collective bargaining agreement (CBA)

did not address the NFL’s duty to warn players about the long-term effects of

concussions.

Players eventually settled for a brain-injury fund valued at $1

billion.

When the NFL and players association negotiated a new CBA in 2020,

their contracts included many provisions for player safety and medical care.

short time later, they bargained for an addendum regarding COVID-19 protocols.

NFL Mgmt. Council v. Superior Ct., 338 (Cal. Ct. App. 1983) (describing a player’s

use of an “injury grievance” provision under the collective bargaining agreement between

the NFL Players Association and the management council).

Stringer v. NFL, 474 F. Supp. 2d 894, 898 (S.D. Ohio 2007) (bringing a wrongful

death action against the NFL, Minnesota Vikings, and Riddell, an equipment maker). A key

part of this case against the NFL related to the league’s hot weather guidelines and protocols

for treating heat-related illnesses, which the plaintiff argued were negligent and not covered

by the CBA to avoid preemption issues. Id. at 904–05, 907. The court ruled that several

claims against the NFL and Riddell were not preempted by section 301 of the Labor-

Management Relations Act because the labor agreement did not relate to those matters, and

denied motions to dismiss these claims. Id. at 915.

Id. at 905–06 (referencing Art. XIII, § 1(a) of the CBA) (discussing a player’s right

to medical treatment and describing a Joint Committee on Player Safety and Welfare “to

discuss player safety and welfare aspects of playing equipment, playing surfaces, stadium

facilities, playing rules, [and] player-coach relationships”).

In re NFL Players Concussion Inj. Litig., 821 F.3d 410, 421–22 (3d Cir. 2016).

Id. at 440, 444 (affirming settlement which “provide[s] nearly $1 billion in value to

the class of retired players”).

NFLPA, COLLECTIVE BARGAINING AGREEMENT 213 (2020), https://nflpaweb.blob.

core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining

-Agreement-Final-Executed-Copy.pdf [https://perma.cc/Q8SC-6J4S]. Article 39 contains

more than twenty sections, including: Physicians, Trainers, the NFLPA’s Medical Director,

Emergency Action Plan, Accountability and Care Committee, Player’s Right to a Second

Medical Opinion, Player’s Right to a Surgeon of His Choice, Preseason Physical, Substance

Abuse and Performance-Enhancing Substances, Visiting Team Locker Rooms, Field Surface

Safety & Performance Committee, Joint Engineering, and Equipment Safety Committee,

Sleep Studies, Club-Wide Biospecimen Collection, Head, Neck, and Spine Committee’s

Concussion Diagnosis and Management Protocol, Game Concussion Protocol Enforcement,

Player Scientific and Medical Research Protocol, Behavioral Health Program, Prescription

Medication and Pain Management Program, and Remedies. Id. at i–xv.

The main provisions of this lengthy agreement are discussed infra, in Part IV.

2021] COVID-19 PROTOCOLS 1041

C. NCAA Student-Athlete Advisory Committees: A Company Union for College

Players

The NCAA provides college players with representation that resembles

company unions in the 1930s. The NCAA adopted this controlled form of

participation by establishing Student-Athlete Advisory Committees (SAACs) in

1989.

Like company unions, the NCAA gave SAACs limited functions. SAACs

were “formed primarily to review and offer student-athlete input on NCAA activities

and proposed legislation that affected student-athlete welfare.”

SAACs have no

actual power or defined authority. Instead, they “[g]enerate a student-athlete voice

within the NCAA structure,” “[s]olicit student-athlete response to proposed NCAA

legislation,” “[r]ecommend potential NCAA legislation,” “[r]eview, react and

comment to the governance structure on legislation, activities and subjects of

interest,” “[a]ctively participate in the administrative process of athletics programs

and the NCAA,” and “[p]romote a positive student-athlete image.”

Minutes of the

quarterly meetings of the Division I SAAC reveal the group’s absence in developing

COVID-19 safety policies.

NCAA, NCAA Student-Athlete Advisory Committee, (1989) http://www.ncaapublic

ations.com/productdownloads/SAAC02.pdf [https://perma.cc/47A6-YXJM].

Id.

NCAA, NCAA Student-Athlete Advisory Committees (SAACs), http://www.ncaa.org/

student-athletes/ncaa-student-athlete-advisory-committees-saacs#:~:text=Each%20committ

ee%20is%20made%20up,%2Dathletes'%20lives%20on%20campus [https://perma.cc/KW

C5-UKP9] (last visited July 18, 2021).

NCAA, Report of the NCAA Division I Student-Athlete Advisory Committee (Apr.

22, 2020), https://ncaaorg.s3.amazonaws.com/committees/d1/saac/Apr2020D1SAAC_

Report.pdf [https://perma.cc/VVL9-MRKV] (listing no action items on the agenda and only

informational points, including an update from the NCAA research staff on the NCAA

Student-Athlete COVID-19 Well-Being Survey). By mid-summer, as football programs

began workouts, some schools required players to sign COVID-related waivers. See, e.g.,

Ross Dellenger, Coronavirus Liability Waivers Raise Questions as College Athletes Return

to Campus, SPORTS ILLUSTRATED (June 17, 2020), https://www.si.com/college/2020/06/17/

college-athletes-coronavirus-waivers-ohio-state-smu [https://perma.cc/HH9U-JSKH]

(reporting that returning athletes, “without legal representation, are agreeing to waive their

legal rights”). However, when SAAC met on July 17, 2020, in a videoconference, and

developed priorities for the 2020–21 year, they barely discussed COVID-19. In Point 8,

during the discussion part of the meeting for conference reports, COVID-19 was mentioned

only once, and it was framed with other items, including social justice and mental health

concerns for student-athletes. NCAA, Report of the NCAA Division I Student-Athlete

Advisory Committee (July 17, 2020), https://ncaaorg.s3.amazonaws.com/committees/d1/sa

ac/July2020D1SAAC_Report.pdf. [https://perma.cc/GC9F-G2XJ]. SAAC held a meeting in

mid-August and “provided feedback related to the 2020 fall playing season and agreed that

student-athletes need clear guidance before the Division can adopt a comprehensive playing

season model for the remainder of the fall.” NCAA, Report of the NCAA Division I Student-

Athlete Advisory Committee (Aug. 18, 2020), https://ncaaorg.s3.amazonaws.com/commit

1042 UTAH LAW REVIEW [NO. 5

The bylaws of a campus-level SAAC confirm that these groups function like

company unions. Northwestern University—the school involved in the most serious

effort by football players to form a union under the NLRA

—has a SAAC.

However, the campus SAAC does not post its bylaws on a public access website.

Stanford University also has a SAAC, and like Northwestern, its football team plays

in a Power 5 Conference. Unlike Northwestern, Stanford’s SAAC publishes its

bylaws.

However, the group’s modest advisory functions fall short of bargaining

over wages, hours of practice, and other conditions of their athletic participation.

III. RESEARCH DESIGN AND METHODS

A. Research Design: A Natural Experiment

When the COVID-19 pandemic escalated in March 2020, the impact on

professional and NCAA sports was abrupt and severe, with shutdowns occurring

between March 11–12.

Football was the best positioned of team sports to adjust to

tees/d1/saac/Aug2020D1SAAC_Report.pdf [https://perma.cc/DDT9-YSE5]. Nothing in the

minutes specifically referenced COVID-19. In October, SAAC discussed COVID-19 in the

limited context of reviewing a draft policy, “Competition Waivers and Extensions of

Eligibility for Winter and Spring Sport Student-Athletes.” NCAA, Report of the NCAA

Division I Student-Athlete Advisory Committee, (Oct. 22, 2020), https://ncaaorg.s3.amazon

aws.com/committees/d1/saac/Oct2020D1SAAC_Report.pdf [https://perma.cc/MSZ7-

7BFJ]. This dealt with player eligibility, not safety related to COVID-19.

See Nw. Univ. and Coll. Athletes Players Ass’n, 362 N.L.R.B. 1350 (2015).

Nw. Univ., Student-Athlete Advisory Committee (SAAC), NW. ATHLETICS (2021),

https://nusports.com/sports/2015/3/18/GEN_2014010134.aspx [https://perma.cc/9K4Q-

GP4C] (last visited Jan. 16, 2021).

Stanford Univ., Stanford SAAC, https://docs.google.com/document/d/1YG8_gQ6Q

nuvXfMctyfTLYoT_GT0jBaL6yx89X2XJTNY/edit?ts=5bede5cc#heading=h.w9jwwqv8m

2c0 [https://perma.cc/Y3GJ-4V42] (last visited July 9, 2021).

Id. at Art. II. Mission. The Stanford University Student-Athlete Advisory Committee

mission states:

Goals and Commitments of SAAC are to help student-athletes:

• Achieve elite-level athletic performance

• Achieve academic excellence

• Participate in community service

• Foster lasting relationships with alumni and faculty

• Develop leadership skills

Stanford Univ., supra note 91, at Art. II.

Scott Cacciola & Sopan Deb, N.B.A. Suspends Season After Player Tests Positive for

Coronavirus, N.Y. TIMES (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/sports/bas

ketball/nba-season-suspended-coronavirus.html [https://perma.cc/D5TN-B84Z] (reporting

that the NBA abruptly canceled games and suspended the season due to the first player

2021] COVID-19 PROTOCOLS 1043

the pandemic because the first wave of lockdowns occurred near the start of their

off-seasons.

The NFL and NCAA had approximately five months to decide

whether to play a 2020 season and what safety protocols to use.

My research design utilizes a natural experiment. A sports economics study,

“A Natural Experiment to Determine the Crowd Effect Upon Home Court

Advantage,”

offers a model for this design. In the study, the researchers tested for

the independent effect of a supportive crowd on a team’s performance. From 1999–

2014, the Los Angeles Clippers and Los Angeles Lakers shared the same home

facility, the Staples Center.

They also played four games against each other in this

arena, alternating as home and away teams.

As a home team, each team filled the

arena with its fans. This provided a natural experiment, allowing researchers to

measure the independent effect of a sympathetic home crowd on team performance.

The Clippers won 13 of 30 games (43.3%) against the Lakers when designated as

the home team, compared to winning 7 of 29 games (24.1%) as the visitors.

other words, the home crowd correlated with winning more games.

Professional and college football are sufficiently similar to offer a natural

experiment to determine whether collective bargaining has an independent effect on

player health protocols. Their games are on the same length and type of field, eleven

players are on offense, eleven players are on defense, a line of scrimmage is used to

testing positive for COVID-19); Greta Anderson, Coronavirus Looms Over March Madness,

INSIDE HIGHER ED (Mar. 5, 2020), https://www.insidehighered.com/news/2020/03/05/first-

ncaa-games-canceled-due-coronavirus [https://perma.cc/2Y8H-6UVF] (stating that two

colleges canceled basketball games due to COVID-19 outbreak on West Coast, putting

March Madness tournament at risk); NHL to Pause Season Due to Coronavirus, NHL (Mar.

11, 2020), https://www.nhl.com/news/nhl-coronavirus-to-provide-update-on-concerns/c-

316131734 [https://perma.cc/23WM-MXGZ] (declaring that hockey season paused until

further notice); Jabari Young, MLB Will Delay Opening Day by at Least Two Weeks, Spring

Training Canceled Due to Coronavirus, CNBC (Mar. 12, 2020, 4:41PM),

https://www.cnbc.com/2020/03/12/mlb-to-suspend-all-operations-spring-training-due-to-

coronavirus.html [https://perma.cc/YMR4-VFU7].

Ken Belson, N.F.L. Players Vote Yes on New 10-Year Labor Deal, N.Y. TIMES (Mar.

15, 2020), https://www.nytimes.com/2020/03/15/sports/football/nfl-cba-approved.html

[ttps://perma.cc/3H9A-TGGX] (reporting that the NFLPA approved a new, ten-year

collective bargaining agreement by a slim majority). While other pro and college sports

postponed or canceled games, the NFL experienced a more muted impact: “Given the

limitations on travel because of the risk of spreading coronavirus, teams will have to evaluate

players by telephone or video conference. This includes college players that teams want to

speak with before the draft, which is currently set to begin on April 23.” Id.

See generally Christopher J. Boudreaux, Shane D. Sanders & Bhavneet Walia, A

Natural Experiment to Determine the Crowd Effect Upon Home Court Advantage, 18 J.

SPORTS ECON. 737 (2017).

Id. at 740.

Id. (reporting that the teams played each other four times per season—except for the

2011 season, which had a lockout—with each team serving as the home team in two games).

Id.

Id. at 746.

1044 UTAH LAW REVIEW [NO. 5

start most plays—bringing many players within six feet of each other—offensive

and defensive positions are the same, and games are played in four fifteen-minute

quarters that yield an hour of competition. The close similarity is borne out by the

fact that the NFL’s labor market is drawn almost entirely from the NCAA.

100

than 80% of rookie players drafted by an NFL team in 2020 made an NFL roster,

underscoring the close similarity of playing conditions in college and pro football.

101

The racial compositions of NFL and NCAA Power 5 rosters are also similar.

102

In 2019, Division I football had 3,671 Black players (46.1% of the total for all

teams), 2,935 (36.9%) white players, and 1,355 “Other” race players (17%).

103

2016, an analysis of pro football rosters concluded that the “NFL as a whole is about

68% black, although that number could be a couple [of] percent higher from the

unknowns. Black and Pacific Islander players are hugely overrepresented compared

to the American population, while all other races are heavily underrepresented.”

104

These statistics—apart from indicating similar compositions by race—also suggest

that NCAA and NFL players should have especially stringent safety conditions

because Black and other non-white people are more at risk for COVID-19

infections

105

and death.

106

100

See Scott Kacsmar, Where Does NFL Talent Come From?, BLEACHER REP’T (May

16, 2013), https://bleacherreport.com/articles/1641528-where-does-nfl-talent-come-from

[https://perma.cc/P4EW-B787] (analyzing rosters from the 2012 season, including practice

squads, from Pro-Football-Reference for all teams, a total of 1,947 players attended 256

different colleges; the study reports that only “seven players did not go to a college in the

United States”).

101

Rick Gosselin, Could the 2020 NFL Draft Be One of the Greatest?, FANNATION,

SPORTS ILLUSTRATED (Sept. 18, 2020), https://www.si.com/nfl/talkoffame/nfl/2020-nfl-

draft-produced-a-record-number-of-players-and-starters [https://perma.cc/6ACW-U9PA]

(“Of the 255 players selected last April, a record 209 of them made opening-day rosters.

That’s a success rate of 81.9 percent, another record for drafts.”).

102

See Michael Gertz, NFL Census 2016, PROFOOTBALLLOGIC (Apr. 19, 2017),

http://www.profootballlogic.com/articles/nfl-census-2016/ [https://perma.cc/JH5S-N3XZ];

see also Diversity Research: NCAA Race and Gender Demographics Database, NCAA,

[hereinafter NCAA] https://www.ncaa.org/about/resources/research/diversity-research

[https://perma.cc/M2CQ-DV6T] (last visited July 19, 2021).

103

NCAA, supra note 102.

104

Gertz, supra note 102.

105

See Shirley Sze, Daniel Pan, Clareece R. Nevill, Laura J. Gray, Christopher A.

Martin, Joshua Nazareth, Jatinder S. Minhas, Pip Divall, Kamlesh Khunti, Keith R. Abrams,

Laura B. Nellums & Manish Pareek, Ethnicity and Clinical Outcomes in COVID-19: A

Systematic Review and Meta-Analysis, LANCET, ECLINICAL MED. (Nov. 12, 2020),

https://www.thelancet.com/journals/eclinm/article/PIIS2589-5370(20)30374-6/fulltext

[https://perma.cc/2X9P-XX54] (finding an analysis of 18,728,893 patients from 50 studies

showed that Black and Asian patients had a higher risk of COVID-19 infection compared to

white patients).

106

See Michael Doumas, Dimitrios Patoulias, Alexandra Katsimardou, Konstantinos

Stavropoulos, Konstantinos Imprialos & Asterios Karagiannis, COVID19 and Increased

Mortality in African Americans: Socioeconomic Differences or Does the Renin Angiotensin

2021] COVID-19 PROTOCOLS 1045

In sum, many important variables were essentially constant across the NFL and

NCAA Power 5 football platforms for the pandemic season of 2020. One significant

difference, however, was the process for implementing safety protocols related to

practices and games. In the fall of 2020, the NFL and NFLPA agreed to a seventy-

two-page addendum that addressed COVID-19 protocols.

107

In contrast, the NCAA

had no players association, its SAAC played no role in co-determining COVID-19

safety policies,

108

and even the Power 5 conferences had chaotic and disjointed

responses to resuming the 2020 season.

109

These disparate conditions for the NFL

and Power 5 football created a natural experiment to compare whether collective

bargaining produced worse, the same, or better safety protocols as opposed to a

nonunion process.

This was not an ideal natural experiment because factors other than collective

bargaining probably led to differences in COVID-19 protocols. The NFL’s protocols

reportedly cost teams $40 million.

110

Cost data for NCAA football COVID-19 safety

protocols were not reported but were probably less due to athletic budgets that

strained to support non-revenue sports.

111

System Also Contribute?, 34 J. HUM. HYPERTENSION 764 (July 15, 2020) (“African-

Americans suffer from a 2.4 and 2.2 times higher mortality rate when compared to [w]hites

and Asians or Latinos, respectively.”).

107

See ADDENDUM, supra note 1.

108

See id. (providing no indication that the NCAA was involved in determining

COVID-19 policies for the NFL); see also supra Section II.C.

109

See e.g., Paula Lavigne & Mark Schlabach, Nearly Half of Power 5 Won’t Disclose

COVID-19 Test Data, ESPN (Sept. 3, 2020), https://www.espn.com/college-

sports/story/_/id/29745712/nearly-half-power-5-disclose-covid-19-test-data [https://perma.

cc/3Y2S-TXRH]; Mark Kreidler, Coronavirus Is Placing College Sports on Hold, Putting

Students, University Budgets, and Entire Towns at Risk, TIME (Aug. 3, 2020, 8:00 AM EDT),

https://time.com/5874483/college-football-coronavirus/ [https://perma.cc/HK9M-RTJU];

Michael Rosenberg, It Took a Pandemic to See the Distorted State of College Sports, SPORTS

ILLUSTRATED (Dec. 29, 2020), https://www.si.com/college/2020/12/29/global-pandemic-

exposed-ncaa-inc [https://perma.cc/48W2-TXR4].

110

Gregg Bell & Lauren Kirschman, The Seahawks Are Perfect Against COVID, But

the Huskies Got Crushed — What Happened?, NEWS TRIB. (Dec. 19, 2020) (reporting that

the Seattle Seahawks spent about $40 million on daily PCR “gold standard” COVID-19

testing, at about $30 per test, while the nearby University of Washington spent about $21 to

$23 per test for antigen testing).

111

Id. (reporting that, because NCAA football rosters are larger than those for NFL

teams, the University of Washington routinely administered several dozen more COVID-19

tests than the Seattle Seahawks, driving up costs). The Seahawks also had more financial

backing to administer its COVID-19 program, with annual TV revenue of about $260

million. Id. In contrast, the Washington athletic program—presumably, like other Power 5

schools—faced a large hole in its budget from COVID-19 and had to administer its protocols

in the face of budget cuts. Id. This report did not mention, however, if the University of

Washington paid for some or all COVID-19 testing out of a general campus budget—a

possibility if the general student population was being tested with some regularity. Id. See

also Craig Garthwaite & Matthew J. Notowidigdo, The COVID-19 Pandemic Is Revealing

1046 UTAH LAW REVIEW [NO. 5

Also, NCAA players were students on college campuses. NCAA programs

could not control their social interactions as much as NFL teams could restrict

players. By comparison, once NFL football players left practice- and game-related

activities, they were often subject to strongly normative guidelines to reduce social

interactions.

112

Also, unlike the NFL, NCAA football protocols were part of

comprehensive policies for other sports. In sum, these outside factors affected the

natural experiment for assessing an effect for collective bargaining. However, no

outside factor appeared to match the singular difference in the processes that the

NFL and Power 5 schools used to implement COVID-19 safety procedures.

B. Research Methods: Comparing NFL and Collegiate COVID-19 Protocols

On September 5, 2020, the NFL and NFLPA agreed to comprehensive COVID-

19 protocols. The addendum was posted online. I began by reading the addendum

and breaking out provisions for player safety.

113

These fell into six categories and

were subdivided into forty-five points. Based on these points, I created a scorecard

to compare with college protocols.

The start of the college football season was more irregular. Among Power 5

conferences, the Big 10 initially announced that it would significantly delay the start

of its 2020 football season.

114

Other conferences went forward with scheduling

games for the regular season. Facing pressure from President Donald Trump

115

and

the Regressive Business Model of College Sports, BROOKINGS BROWN CTR. CHALKBOARD

(Oct. 16, 2020) (reporting that low-revenue sports were being eliminated due to budget

strains caused by the COVID-19 pandemic).

112

Some provisions related to non-players, such as travel and media groups.

ADDENDUM, supra note 1, at 7 (Tier 2M (pool media) and Tier 3 (facility workers who do

not have close contact with players and coaches)).

113

See infra notes 126–28, 131–33.

114

Bruce Schoenfeld, Was the College Football Season Worth It?, N.Y. TIMES (Dec.

30, 2020), https://www.nytimes.com/2020/12/30/magazine/college-football-pandemic.html

[https://perma.cc/QEX2-UD7W].

115

Allan Smith & Peter Alexander, Trump Takes Victory Lap Over Return of Big Ten

Football. College President Says it Has Nothing to Do with Him, NBCNEWS.COM (Sept. 16,

2020, 5:41 PM MDT), https://www.nbcnews.com/politics/donald-trump/trump-takes-

victory-lap-return-big-10-football-college-president-n124 [https://perma.cc/NK7F-95EQ]

(reporting on a late-August tweet by President Trump: “No, I want Big 10, and all other

football, back – NOW”). In a follow-up, President Trump tweeted, “Disgraceful that Big 10

is not playing football. Let them PLAY!” Id.

2021] COVID-19 PROTOCOLS 1047

coaches

116

to put on a football season during the fall, the Big 10 modified its original

decision.

117

By the end of September, with a football season in place for Power 5

conferences, I began to identify FOIA and similar open records laws for the fifty-

three public schools in these conferences. I expected that the public schools would

respond to my request in whole or in large part because public records laws apply to

state-supported schools. (My survey confirmed this assumption: I received

numerous initial responses to my inquiries referencing a school’s obligations under

a public records law.)

118

These laws generally allow public access to a school’s

records, with exceptions.

119

I tempered my hope for cooperation from schools when

116

See, e.g., Orion Sang, Michigan Football Coach Jim Harbaugh Attends Protest,

Says ‘Free the Big 10,’ DETROIT FREE PRESS (Sept. 5, 2020, 3:59 PM ET),

https://www.freep.com/story/sports/college/university-michigan/wolverines/2020/09/05/

michigan-football-jim-harbaugh-protest/5730035002/ [https://perma.cc/287B-NA46]; Gabe

Lacques, 20 for 2020: Sports Figures Who Defined Courageous and Kind, Selfish and

Stubborn, USA TODAY (Dec. 28, 2020, 12:47 PM ET),

https://www.usatoday.com/story/sports/2020/12/28/2020-year-review-20-sports-figures-

defined-best-and-worst/4015133001/ [https://perma.cc/C4QP-BFL9] (explaining that while

the Big 10 was deliberating whether to play football in 2020, Nebraska Head Coach Scott

Frost suggested that his program would play a non-Big 10 schedule if games were canceled).

117

Schoenfeld, supra note 114.

118

See, e.g., Email from Melissa Tindell, Dir. of Commc’n, Univ. of Tenn. to Michael

H. Leroy, Professor, Univ. of Ill. Coll. of Law (Oct. 16, 2020) (on file with author) (“[O]nly

citizens of Tennessee may inspect and receive copies of public records under the Tennessee

Public Records Act. Tenn. Code Ann. § 10-7-503(a)(2)(A). It appears this law would impact

your request for information.”); see also Email from Bob Taylor, Open Records Man., Univ.

of Ga. to Michael H. Leroy, Professor, Univ. of Ill. Col. of Law (on file with author) (Oct.

22, 2020) (“Professor LeRoy—This is to acknowledge receipt of your October 16, 2020,

request for documents under the Georgia Open Records Act, and is in accordance with the

three-day period of response pursuant to O.C.G.A. § 50-18-71(b)(2).”).

119

See, e.g., 5 Ill. Comp. Stat. 140/1-11. The statute’s purpose states:

Pursuant to the fundamental philosophy of the American constitutional form of

government, it is declared to be the public policy of the State of Illinois that all

persons are entitled to full and complete information regarding the affairs of

government and the official acts and policies of those who represent them as

public officials and public employees consistent with the terms of this Act. Such

access is necessary to enable the people to fulfill their duties of discussing public

issues fully and freely, making informed political judgments and monitoring

government to ensure that it is being conducted in the public interest.

5 Ill. Comp. Stat. 140/1-11. The law also provides exceptions, stating that it “is not intended

to be used to violate individual privacy, nor for the purpose of furthering a commercial

enterprise, or to disrupt the duly-undertaken work of any public body independent of the

fulfillment of any of the fore-mentioned rights of the people to access . . . information.” Id.

1048 UTAH LAW REVIEW [NO. 5

an investigative report found that college athletic departments concealed

information about COVID-19 infections from their communities.

120

Often, I was required to register online with these public universities to request

information. I devised a simple request for COVID-19 policies related to football

players. I avoided questions that would likely be rejected—for example, data on

testing results or player information. I also avoided requests that could be rejected

on the grounds of being burdensome or costly. I sent requests to all fifty-three public

schools and the legal departments of the twelve private schools

121

between October

15 and October 30, 2020. My request was the same for every school:

This request is for my research study, “COVID-19 Protocols for NCAA

Football and the NFL.” My survey includes all NCAA Power 5 conference

institutions, including those that are not subject to a FOIA or public

information disclosure law.

I respectfully request policies and procedures at your university relating to

(1) questionnaires, or similar inquiries, for football student-athletes for

COVID-19 symptoms and exposure to the virus; (2) criteria to identify

high-risk football student-athletes, and specialized procedures for them;

(3) screening and testing procedures for football student-athletes; (4)

screening and testing procedures for football student-athletes who test

positive or are symptomatic for COVID-19; (5) criteria to return football

student-athletes who test positive or are symptomatic for COVID-19 to

regular athletic activities; and (6) contact tracing policies and procedures

120

Blinder, Higgins, and Guggenheim states as follows:

At least 6,629 people who play and work in athletic departments that compete in

college football’s premier leagues have contracted the virus; the actual tally of

cases during the pandemic is assuredly far larger than what is shown by The

Times’s count, the most comprehensive public measure of the virus in college

sports.

See Blinder et al., supra note 3; see also id. (stating that the schools not named in the article’s

list, “many of them public institutions, released no statistics or limited information about

their athletic departments, or they stopped providing data just ahead of football season. This

had the effect of drawing a curtain of secrecy around college sports during the gravest public

health crisis in the United States in a century”).

121

Arranged by conferences in 2020, schools included ACC (Clemson, Florida State,

Georgia Tech, Louisville, North Carolina State, North Carolina, Pittsburgh, Virginia,

Virginia Tech); Big 10 (Illinois, Indiana, Iowa, Maryland, Michigan, Michigan State,

Minnesota, Nebraska, Ohio State, Penn State, Purdue, Rutgers, and Wisconsin); Big Twelve

(Iowa State, Kansas, Kansas State, Oklahoma, Oklahoma State, Texas, Texas Tech, and West

Virginia); PAC-12 (Arizona, Arizona State, Cal (California-Berkeley), Colorado, Oregon,

Oregon State, UCLA, Washington, and Washington State); and SEC (Alabama, Arkansas,

Auburn, Florida, Georgia, Kentucky, LSU, Mississippi, Mississippi State, Missouri, South

Carolina, Tennessee, and Texas A&M).

2021] COVID-19 PROTOCOLS 1049

for football student-athletes who test positive or are symptomatic for

COVID-19.

My request is only for football policies and procedures. If this information

is grouped with other sports, I would accept that more general information.

I prefer an email response with a PDF attachment over physical copies of

pages sent by mail. My email address is [email protected].

I am not seeking data or information relating to football student-athletes.

My research will also report institutions that do not participate in this

survey. If you wish to discuss my request, please email me. Thank you for

your time and cooperation.

I tracked responses and non-responses to my requests. The responses I received

sub-divided into fully or mostly complete information, partial information, and too

little information to be usable. Other schools informed me that their state’s FOIA

laws exempted requests from non-residents. Penn State noted that the university is

entirely exempt from all FOIA requests. Some schools delayed their response, often

several times. Other schools—especially private schools—never replied to me.

When a response was sufficient to be considered comprehensive, I tallied points

that matched items on the NFL-NFLPA scorecard. I assigned one point to each

matching item. While some points were probably more important than others in

limiting the spread of medical effects from COVID-19, I had no scientific basis for

assigning different weights to these points.

IV. EMPIRICAL FINDINGS

I present the empirical results in three parts. Section IV.A.1 pertains to school

responses and non-responses. In Section IV.A.2, I provide a statistical breakdown

of the usable responses. My scoring compared forty-five specific elements in the

NFL-NFLPA agreement with the policy materials that each school provided me. My

results show that schools scored between ten and thirty points. In Section IV.A.3, I

compare the number of Power 5 and NFL games postponed or canceled due to

COVID-19.

In Section IV.B, I interpret my results. The data have several limitations. I,

therefore, caution against making critical judgments of schools with lower scores. I

also note that as the 2020 football season continued, the NFL and NFLPA revised

their policies. Near the end of the 2020 football season, some Power 5 schools made

changes, too, such as adopting the use of KINEXON tracking technology,

122

protocol that was absent from the policies in my survey.

122

See, e.g., PAC-12 Sports, PAC-12 to Utilize KINEXON SafeZone for Rapid, Reliable

Tracing, 247 SPORTS (Nov. 30, 2020), https://247sports.com/college/washington/Article/

1050 UTAH LAW REVIEW [NO. 5

A. Survey Responses

1. Sample and Response Rate

Table 1 summarizes responses and non-responses from sixty-five Power 5

schools.

Table 1

Responses to FOIA and Open Records Requests by Power 5 Schools

No Response/Delayed Response (39 Schools)

Responses (26 Schools)

(Numbers in parentheses reflect games postponed or canceled)

No Response

Private: Boston College (1), Duke

(2), Miami (4), Notre Dame (1),

Northwestern (1), TCU (0),

Stanford (1), Syracuse (0), USC

(2), Wake Forest (6), Vanderbilt

(4) (21 disrupted games)

Public: Auburn (1), Florida (2),

Kansas State (0), Mississippi (0),

Wisconsin (3), North Carolina

State (1), Oklahoma (2),

Oklahoma State (1), Oregon State

(0), Purdue (3), South Carolina

(0), Texas Tech (0), Washington

State (3) (16 disrupted games)

Response Received: School Is

Exempt from Disclosure Law

Alabama (2), Arkansas (2), LSU

(3), Penn State (0), Pitt (1),

Tennessee (2), Virginia (4),

Virginia Tech (2) (16 disrupted

games)

(11)

(13)

Unusable: One Page, Little

Information

Michigan State (2), Nebraska

(1), Rutgers (0) (3 disrupted

games)

Unusable: Good Faith

Response with Too Little

Specific Information

Baylor (Private) (1), Iowa

State (0), Maryland (4),

Texas A&M (3) (8 disrupted

games)

Usable: Substantial or

Complete Response

Arizona State [PAC-12] (3),

Cal-Berkeley [PAC-12] (4),

Clemson [ACC] (1),

Colorado [PAC 12] (2),

Florida State [ACC] (4),

Illinois [Big 10] (0), Indiana

[Big 10] (2), Iowa [Big 10]

Washington-Huskies-UW-Football-Pac-12-to-utilize-KINEXON-SafeZone-for-rapid-and-

reliable-contact-tracing-155702211/ [https://perma.cc/GRG4-Z25F] [hereinafter PAC-12 to

Utilize KINEXON] (explaining the PAC-12 Conference’s announcement that it would use

KINEXON SafeZone technology to mitigate the spread of COVID-19 in its football and

men’s and women’s basketball programs).

2021] COVID-19 PROTOCOLS 1051

Response: Acknowledgment and

Indefinite Delay

Arizona (2), Georgia (3), Georgia

Tech (3), Louisville (3),

Minnesota (2), Ohio State (2),

UCLA (1) (16 disrupted games)

(1), Kansas [Big 12] (2),

Kentucky [SEC] (0),

Michigan [Big 10] (3),

Mississippi State ($159 Fee)

[SEC] (2), Missouri [SEC]

(5), North Carolina [ACC]

(0), Oregon [PAC 12] (1),

Texas [Big 12] (2), Utah

[PAC 12] (3), Washington

[PAC 12] (4), West Virginia

[Big 12] (2) (41 disrupted

games)

Finding 1: The response rate for the survey was about 30%, a typical figure for

organizational responses to survey research.

123

• The response rate, counting only usable replies to the survey request, was

29.2% (nineteen of sixty-five).

• Among the eleven private schools, 90.9% did not respond to this survey.

Baylor, the lone exception, provided a good faith response that was too

incomplete to score.

• The NFL and NFLPA, also private entities that are exempt from FOIA and

Open Records laws, published their complete labor agreement addendum

for COVID-19 protocols.

• Eight public schools (12.3%) stated that they were exempt from providing

information to an out-of-state resident.

• Nine schools (13.8%) asked for one or more extensions in October 2020,

and as of December 31, 2020, had not provided information.

• Three schools provided such limited information that their responses could

not be considered a good faith reply. Two schools sent a cursory list of

COVID-19 symptoms; the other school sent a blank form for a player to

complete with a space for the first and last name and a space for whether

the player tested positive. The schools who sent a blank form for a player

to complete were Michigan State, Nebraska, and Rutgers.

• The nineteen usable responses came from public schools (100%).

123

See Yehuda Baruch & Brooks C. Holtom, Survey Response Rate Levels and Trends

in Organizational Research, 61 HUM. RELS. 1139, 1139 (2008) (stating that analysis of 1,607

studies published from 2000–2005 in seventeen refereed academic journals, and including

more than 100,000 organizations as respondents, found that the average response rate for

studies that used organizational data was 35.7%); see also Brad R. Fulton, Organizations

and Survey Research: Implementing Response Enhancing Strategies and Conducting

Nonresponse Analyses, 47 SOC. METHODS & RSCH. 240, 240 (2018) (stating that for

organizational studies that use key informants as responders, the mean response rate for

published studies is 34%).

1052 UTAH LAW REVIEW [NO. 5

• The sampling of usable responses across Power 5 Conferences was fairly

even: ACC (three responses); Big 10 (four responses); Big 12 (three

responses); PAC-12 (six responses); and SEC (three responses).

2. Scoring Power 5 School Responses on an NFL-NFLPA COVID-19 Scorecard

In this section, I present data for various elements of school responses on the

NFL-NFLPA scorecard.

Finding 2: Less than half of the Power 5 schools matched the NFL-NFLPA’s

policies to screen for nine COVID-19 symptoms, meaning that NFL players

were screened more thoroughly than college players.

• NFL-NFLPA symptom list included:

o “1. Loss or diminution of smell or taste 2. Cough 3. Shortness of breath

4. Chest Pain 5. Feeling feverish, chills 6. Muscle pain (not exercise

related) 7. Nausea, vomiting, diarrhea 8. Sinus or cold-like symptoms

(headache, congestion, runny nose, sore throat) 9. Fever (temperature

≥ 100.4 degrees)”

124

• Only seven of nineteen schools (36.8%) had a policy for checking player

symptoms that completely matched the NFL-NFLPA agreement: Cal-

Berkeley [PAC-12], Colorado [PAC 12], Illinois [Big 10], Iowa [Big 10],

Michigan [Big 10], North Carolina [ACC], and Oregon [PAC 12].

• Schools in three conferences reported screening policies for player

symptoms that matched the NFL-NFLPA: PAC-12 (three schools), Big 10

(three schools), and ACC (one school). No schools in the Big 12 and SEC

reported a policy of symptom checking that matched the NFL-NFLPA.

124

ADDENDUM, supra note 1, at 25.

13 13 13

13 13

12 12

Smell/Taste

Cough

Short Breath

Chest Pain

Fever/Chills

Muscle Pain

Nausea/Other GI

Sinus

Fever 100.4+

Table 2

Symptom Checklist for College Players

(Total Responses = 19)

2021] COVID-19 PROTOCOLS 1053

Finding 3: Only about one-third of Power 5 schools had a policy for identifying

at least one specific medical risk factor for individuals, and no school matched

the NFL-NFLPA’s guidance for “high-risk” players to curtail most social

interactions.

• The NFL-NFLPA agreement designated “high-risk” individuals as having

any of the following traits: “African American, Hispanic or Pacific

Islander; BMI ≥ 28; Sleep apnea; Hypertension; Altered immunity;

Diabetes mellitus; Cardiac disease.”

125

• The NFL-NFLPA agreement treated “high-risk” players the same as

players with COVID-19 symptoms by requiring:

o “i. Home pulse oximeter, if confirmed COVID-19 positive.

o ii. If fever or flu-like symptoms are present and COVID-19 is not

confirmed initially, testing for other viral syndromes such as influenza

and RSV should be considered (i.e., respiratory multiplex viral PCR).

o iii. If initial PCR testing is negative, repeat testing for COVID-19 must

be considered pursuant to the Screening and Testing Protocol.

o iv. Confirmation of another virus does not rule out co-infection with

COVID-19 and re-testing for COVID-19 should be considered if

symptoms persist beyond one week.

o v. Labs and ECG are not recommended in patients being managed as

an outpatient during the acute phase of a COVID-19 illness as

conducting these tests place others at risk when the patient should be

in isolation; however, players will require some cardiovascular

evaluation before a return to exercise.”

126

125

Id. at 1.

126

Id. at 26–27.

0 0 0

Black

Hispanic

Pacific Islander

BMI 28+

Sleep Apnea

Hypertension

Immune Disorder

Diabetes

Cardiac

Table 3

Policy for Identifying Individual Risk Factors

Total Responses = 19

1054 UTAH LAW REVIEW [NO. 5

• The NFL-NFLPA had a broad policy restricting player time at practice

facilities and social interactions (apart from the baseline safety protocols

for all players).

127

• No Power 5 school had a “high-risk” policy like the policy in the NFL-

NFLPA agreement that specifically designated a player’s race.

• Only six out of nineteen schools (31.6%) had a “high-risk” policy

specifically for individuals with an immune or cardiac condition; only five

schools (26.3%) had a policy for diabetes; only four schools (21.1%) had a

policy for hypertension, and only one school (5.3%) had a policy for

obesity.

• Even for the few schools that identified individual risk factors associated

with COVID-19 infection, none had comprehensive social limitations and

enhanced testing like the NFL-NFLPA agreement’s “high-risk” player

protection policies.

127

Id. at 69 (emphasis added)

COVID-19 can cause symptoms ranging from mild to severe. According to the

CDC, some individuals may be more likely to suffer severe illness as a result of

COVID-19 than others due to the presence of certain characteristics or medical

conditions. It is the responsibility of each Head Team Physician to identify any

player that may be a High Risk Individual, and he or she must review each player’s

individual medical history in light of the current CDC guidance regarding

individuals with increased risk of severe illness from COVID-19. Clubs should

educate their High Risk players and players in close contact or residing with High

Risk Individuals on steps they can take to help further protect themselves, such

as: staying home to the extent possible, and limiting time at Club facilities to

only “essential” time; avoiding close contact with others, especially crowds,

communal spaces, and anyone who is sick; closely monitoring and managing

physical and mental health at all times, and notifying the Team Physician of

any change in health status; speaking to a Team Physician about whether all

vaccinations are up to date, including the flu vaccine; continuing to take

medications as recommended by the High Risk Individual’s treating

physician, and maintaining at least a two-week supply of any necessary

prescription and nonprescription medications at all times; and reviewing the

CDC’s Guidance for extra precautions for reducing risk for High Risk

Individuals, as set forth in the NFL-NFLPA Education Protocol. Each Club is

responsible for identifying and implementing additional measures to reduce High

Risk Individuals’ risk of exposure to COVID-19 while in the club facilities.

2021] COVID-19 PROTOCOLS 1055

Finding 4: While the NFL-NFLPA’s COVID-19 protocols required daily

symptom and COVID-19 testing of all players, only about half of Power 5

schools explicitly required the same testing policies for symptoms and

infections.

• The NFL-NFLPA agreement had a rigorous policy of daily screening and

testing, providing: “Screening: All players, Club employees and

contractors who have access to the Restricted Areas must undergo daily

screening and testing prior to entering the facility pursuant to the Screening

and Testing Protocol.”

128

• All Power 5 schools had policies for periodic symptom screening and

COVID-19 testing; however, only ten out of nineteen schools (52.6%) had

explicit policies to screen and test players at least six days per week.

128

Id. at 9 (emphasis added).

10 10

9 9

Daily COVID

Symptom

Daily COVID Test Unspecified

Frequency COVID

Symptom

Unspecified

Frequency COVID

Test

Table 4

Frequency of COVID-19 Symptom Screening and Testing for

Players

Total Responses = 19

1056 UTAH LAW REVIEW [NO. 5

Finding 5: Power 5 schools had fewer policies for player exposure to COVID-

19/quarantine due to a COVID-19 positive test, compared to the NFL-NFLPA’s

addendum.

• The NFL-NFLPA agreement had a rigorous policy for isolating and testing

players who were exposed to people with COVID-19: “If virus test is

negative and Close Contact remains asymptomatic: Close Contact may

return to Club Facility subject to the following: Increased symptom

monitoring; Daily PCR Virus Testing: Days 1–8; Regular testing schedule

thereafter.”

129

• The NFL-NFLPA agreement had a rigorous policy for quarantining and

testing a player who tested positive for COVID-19: “If virus test is positive

. . . and individual is symptomatic: No return unless and until: 1. At least

10 days have passed since first COVID symptoms appeared; and 2. At least

24 hours have passed since last fever without the use of fever-reducing

medications; and 3. Other symptoms (e.g., cough, shortness of breath) have

improved; and 4. Return approved by the Club physician, after consultation

with ICS and notification of NFL Chief Medical Officer . . . .”

130

• The NFL-NFLPA Agreement also provided: “The following additional

testing for NFL Players who are High Risk . . . or have COVID-19

symptoms are required: i. Home pulse oximeter, if confirmed COVID-19

positive. ii. If fever or flu-like symptoms are present and COVID-19 is not

confirmed initially, testing for other viral syndromes such as influenza and

RSV should be considered (i.e., respiratory multiplex viral PCR). . . .”

131

129

Id. at 36 (emphasis omitted).

130

ADDENDUM, supra note 1, at 36.

131

Id. at 26.

Exposure Only: Isolate

Until Negative Test

Exposure Only: Eight Day

Repeat PCR Testing

Daily Home Pulse

Oximeter for High Risk or

Positive

Table 5

Player Expossure to Symptomatic Contacts

and Quarantine for Confirmed COVID-19 Infections

Total Responses = 19

2021] COVID-19 PROTOCOLS 1057

• All Power 5 schools had weaker policies, compared to the NFL-NFLPA

agreement, for players exposed to people who tested positive for, or were

exposed to people with, COVID-19:

o For exposure-only cases, only five schools (26.3%) had policies

requiring isolation until the player had a negative test; and only one

school (5.3%) had a policy for PCR testing for eight consecutive days.

o For COVID-19 positive players, only two schools (10.5%) had policies

for at-home monitoring of a player’s oxygen levels.

Finding 6: Most Power 5 schools had similar cardiac testing protocols to those

in the NFL-NFLPA’s COVID-19 agreement.

• The NFL-NFLPA agreement had a rigorous policy for isolating and testing

players who were exposed to COVID-19 or related symptoms: “Any player

who (i) tests positive for COVID-19 (by PCR or antibody test), (ii) is

presumed COVID-19 positive, or (iii) has any cardiopulmonary symptoms

(e.g., shortness of breath, chest pain, tachycardia), is required to undergo

the following testing prior to returning to participation: 1. High-sensitivity

troponin testing (or troponin I or T if high sensitivity troponin); 2. Standard

12-lead electrocardiogram (ECG); and 3. Two-dimensional resting

echocardiogram to assess left ventricular function.”

132

• Most Power 5 schools had cardiac testing requirements for COVID-19

positive players.

o For the three or four schools that did not score on any of these

dimensions, they gave discretion to a team physician to conduct cardiac

testing. Physicians may have used discretion in many or all cases to

test players for cardiac problems.

132

Id. at 34–35.

15 15

Cardiac Testing

Policy

Troponin Testing ECG Testing Left Ventricle

Testing

Table 6

Cardiac Policy and Testing for COVID-19 Positive Players

Total Responses = 19

1058 UTAH LAW REVIEW [NO. 5

o Fifteen schools (78.9%) required cardiac testing for COVID-19

players, ECG testing, and left-ventricle function testing. Sixteen

schools (84.2%) required a troponin blood test screen for cardiac

problems.

Finding 7: Nearly all Power 5 schools had the same ten-day minimum

quarantining requirement for players who tested positive for COVID-19, but

only one-third of the schools also matched the specific medical-improvement

criteria in the NFL-NFLPA’s COVID-19 agreement.

• The NFL-NFLPA agreement required a player who tested positive for

COVID-19 and who had symptoms to isolate and meet all five of the

following conditions to resume regular activity: “Individual Tests Positive

for COVID-19 and is Symptomatic. Isolate as soon as possible. No return

unless and until: 1. At least 10 days have passed since first COVID

symptoms appeared; and 2. At least 24 hours have passed since last fever

without the use of fever-reducing medications; and 3. Other symptoms

(e.g., cough, shortness of breath) have improved; and 4. Return approved

by the Club physician, after consultation with ICS and notification of NFL

Chief Medical Officer; and 5. Local regulations and requirements are

satisfied.”

133

• Seventeen Power 5 schools (89.5%) matched the NFL-NFLPA Agreement

policy that required COVID-19 positive players with symptoms to

quarantine for ten days.

• Only seven schools required a player in quarantine to be fever-free without

medication for twenty-four hours and symptom improvement (36.8%), and

only six schools (31.6%) required a physician to release a player from

quarantine.

133

Id. at 38.

7 7

10 Day +

Quarantine

No Fever 24

Hour

Symptom

Improvement

Physician

Approves

Local Health

Table 7

Returning COVID-19 Positive Players to Regular Activity

Total Responses = 19

2021] COVID-19 PROTOCOLS 1059

Finding 8: Power 5 schools completely lacked KINEXON tracking technology

for contact tracing, and only about one-fourth of the schools reported contact

tracing policies to test people who were exposed to a player who tested positive

to COVID-19.

134

• The NFL-NFLPA agreement required a player who tested positive for

COVID-19 or who had symptoms to isolate and meet all five of the

following conditions to resume regular activity: “i. Conduct a contact

tracing investigation to identify all other Club employees, contractors

and/or players, including at other Clubs, who had Close Contact with the

infected individual; 1. Contact tracing to determine Close Contact

exposures in-game will be conducted using Kinexon tracking devices. 2.

Tier 1, Tier 2, Tier 2M and Tier 3 Individuals will also be required to wear

Kinexon Proximity Recording tracking devices at all times while engaged

in team activities (including in the Club facility, during practices, and

during team travel). Such devices will only be used to determine Close

Contact exposures during team activities. The data and information

collected from the Proximity Recording tracking devices shall not be

shared with or used by the Club or any third party for any purpose other

than evaluating Close Contact exposures and evaluating efficacy and

compliance with the NFL-NFLPA COVID-19 Protocols. ii. Notify those

134

Bell & Kirschman, supra note 110 (“Unlike the Seahawks, the Huskies go back to

their dorms or shared houses and apartments, in close quarters with fellow students who’ve

done who knows what with whom that day, week and month. College students don’t wear

contact tracers.”).

0 0

Contact Tracing Policy

KINEXON Game

KINEXON Practice & Travel

Exposure Notice

Test Exposed

Table 8

COVID-19 Contact Tracing Procedures

Total Responses = 19

1060 UTAH LAW REVIEW [NO. 5

individuals of their potential exposure and probable need for quarantine or

isolation pending the results of testing; iii. Arrange for those individuals to

be tested; and iv. Notify the proper health authorities as required by the

applicable local regulation/law.”

135

• About half of the Power 5 schools (57.9%) stated a specific contact tracing

policy.

• Less than half of the Power 5 schools reported a contact tracing policy that

required notification of players exposed to another player who tested

positive for COVID-19 (36.9%) and required testing of the exposed player

(26.3%).

Finding 9: A sequence for COVID-19 policies, starting with symptom

screening—including home-based oxygen monitoring, cardiac testing, and

contact tracing—shows that schools significantly trailed NFL protocols at key

milestones for disease mitigation and treatment.

• At the front-end of a school’s policy, only 36% of schools regularly

screened for nine COVID-19 symptoms listed in the NFL-NFLPA

agreement.

• Only 11% of schools had home oxygen testing and monitoring of COVID-

19 positive players, as provided in the NFL-NFLPA agreement.

135

ADDENDUM, supra note 1, at 42–43 (emphasis added).

36%

11%

79%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

NFL-

NFLPA 9-

Symptom

Screening

NFL-

NFLPA

Home

Oxygen

Test for

Positive

Player

NFL-

NFLPA 4-

Element

Cardiac

Testing

NFL-

NFLPA

KINEXON

Contact

Tracing

Percentage of Schools

Table 9

Sequence of COVID-19 Protocols for Symptom Screening,

Oxygen Monitoring, Cardiac Testing, and KINEXON Contact

Tracing

2021] COVID-19 PROTOCOLS 1061

• Most schools (79%) had the same or similar cardiac testing protocols as the

NFL-NFLPA agreement for COVID-19 positive players.

• No schools reported using KINEXON location tracking technology for use

in contact tracing as provided in the NFL-NFLPA agreement.

Finding 10: Median scores for teams varied substantially by conferences, with

the Big 10 and PAC-12 registering the highest COVID-19 policy scores (median

scores, respectively, twenty points and nineteen points) and the SEC registering

the lowest (median score ten points).

• The variances in scores across conferences were consistent with the SEC’s

relatively rushed approach to play football and the Big 10’s and PAC-12’s

delayed start.

• The variances of team scores within all five conferences suggested that

some schools adopted more rigorous COVID-19 safety policies, or other

schools did not conform to conference standards.

• Four schools stood out for COVID-19 policies that approximated standards

in the NFL: Illinois (thirty points), Colorado (twenty-seven and a half

points), Cal (twenty-seven points), and Texas (twenty-seven points).

In sum, a consistent pattern emerged in Finding 2 through Finding 10, showing

that Power 5 schools had less comprehensive and less rigorous COVID-19 testing,

mitigation, treatment, return to activity, and contact tracing policies compared to the

NFL. Viewed as a whole, the data suggest that collectively bargained player safety

policies in the NFL were better than those that schools and conferences unilaterally

implemented. Thus, the natural experiment produced by the sudden and severe

outbreak of the COVID-19 pandemic provides evidence that college players could

have benefitted from being treated as employees who could form a union to negotiate

safer protocols and policies.

27 27

ACC

MEDIAN=16

B10

MEDIAN=20

B12

MEDIAN=17

PAC 12

MEDIAN=19

SEC

MEDIAN=10

Table 10

Scorecard of College COVID-19 Protocols that Matched

NFL-NFLPA Addendum (Schools Grouped by Conference)

1062 UTAH LAW REVIEW [NO. 5

3. Comparing Scheduling Disruptions Due to COVID-19 Among Power 5 Schools

and NFL Teams

The data presented in Table 11 derive from news reports that tabulated game

postponements and cancellations in college football and the NFL. The news

reporting for college football games included all teams, incorporating those not in a

Power 5 Conference. For Table 11, I used only games where both teams were Power

5 schools.

Finding 11: Power 5 football games were postponed or canceled twice as often

as NFL games.

• At least sixty-one games involving only Power 5 teams as home and

visiting teams were postponed or canceled due to COVID-19 concerns

during the 2020 football season.

136

With 122 teams affected by game

136

David Cobb, Ben Kercheval & Barrett Sallee, College Football Sees 139 Games

Canceled or Postponed During 2020 Regular Season Due to COVID-19 Issues, CBSSPORTS

(Oct. 16, 2020, 12:21 PM ET), https://www.cbssports.com/college-football/news/college-

football-sees-139-games-canceled-or-postponed-during-2020-regular-season-due-to-covid-

19-issues/ [https://perma.cc/937K-RZLD] (listing college football games that were affected

during the 2020 regular season). I reduced the list to games involving only Power 5 schools

as home and visiting teams, and found that sixty-two games were canceled or postponed: NC

State at Virginia Tech (Sept. 11), Virginia at Virginia Tech (Sept. 19), Notre Dame at Wake

Forest (Sept. 27), Oklahoma State at Baylor (Oct. 17), Vanderbilt at Missouri (Oct. 17), LSU

at Florida (Oct. 17), Missouri at Florida (Oct. 24), Wisconsin at Nebraska (Oct. 31), Purdue

1 1 1

0 0

1 1

8 8

0 0 0

0 0

Wk 1Wk 2Wk 3Wk 4Wk 5Wk 6Wk 7Wk 8Wk 9 Wk

Table 11

NFL and Power 5 Games Postponed or Canceled Due to COVID-

19 (Week 1 – Week 15)

Power 5 Schools NFL

Linear (Power 5 Schools) Linear (NFL)

2021] COVID-19 PROTOCOLS 1063

disruptions, averaging the data reveals that the sixty-five-member Power 5

conferences experienced roughly two game disruptions per school during

the season.

• At least sixteen NFL games were postponed or canceled due to COVID-19

concerns during the 2020 football season. With thirty-two teams affected

by game disruptions, averaging the data reveals that the NFL experienced

roughly one game disruption per team during the season.

137

In sum, Table 11 provides evidence about the overall effectiveness of COVID-

19 protocols in NFL and Power 5 football. College teams experienced about twice

as many game disruptions as the NFL teams. This finding is consistent with data in

Finding 2 through Finding 10 that report shortcomings in the nonunion college

football protocols compared to the collectively bargained protocols in the NFL.

at Wisconsin (Nov. 7), Louisville at Virginia (Nov. 7), Washington at California (Nov. 7),

Arizona at Utah (Nov. 7), Auburn at Mississippi State (Nov. 14), Texas A&M at Tennessee

(Nov. 14), Alabama at LSU (Nov. 14), Georgia at Missouri (Nov. 14), Ohio State at

Maryland (Nov. 14), Pitt at Georgia Tech (Nov. 14), Cal at Arizona State (Nov. 14), Utah at

UCLA (Nov. 14), Arizona State at Colorado (Nov. 21), Ole Miss at Texas A&M (Nov. 21),

Georgia Tech at Miami (Nov. 21), Wake Forest at Duke (Nov. 21), Texas at Kansas (Nov.

21), Michigan State at Maryland (Nov. 21), Washington State at Stanford (Nov. 21),

Clemson at Florida State (Nov. 21), Louisville at Boston College (Nov. 27), Washington at

Washington State (Nov. 27), Miami at Wake Forest (Nov. 28), Arkansas at Missouri (Nov.

28), Tennessee at Vanderbilt (Nov. 28), Minnesota at Wisconsin (Nov. 28), Utah at Arizona

State (Nov. 28), Oklahoma at West Virginia (Nov. 28), Colorado at USC (Nov. 28), Virginia

at Florida State (Nov. 28), Wake Forest at Louisville (Dec. 5), Alabama at Arkansas (Dec.

5), Northwestern at Minnesota (Dec. 5), Maryland at Michigan (Dec. 5), Ole Miss at LSU

(Dec. 5), Missouri at Mississippi State (Dec. 5), Miami at Wake Forest (Dec. 5), Florida

State at Duke (Dec. 5), Vanderbilt at Georgia (Dec. 5), Ole Miss at Texas A&M (Dec. 12),

Michigan at Ohio State (Dec. 12), Purdue at Indiana (Dec. 12), Washington at Oregon (Dec.

12), Oklahoma at West Virginia (Dec. 12), Cal at Washington State (Dec. 12), Texas at

Kansas (Dec. 12), Washington at USC (Dec. 18), Purdue at Indiana (Dec. 18), Vanderbilt at

Georgia (Dec. 19), Georgia Tech at Miami (Dec. 19), Arizona at Cal (Dec. 19), Michigan

State at Maryland (Dec. 19), Michigan at Iowa (Dec. 19), and Florida State at Wake Forest

(Dec. 19). Id.

137

Nick Selbe, Which NFL Games Have Been Rescheduled Due to COVID-19?,

SPORTS ILLUSTRATED (Nov. 30, 2020), https://www.si.com/nfl/2020/10/09/every-game-

rescheduled-due-to-covid19-this-season [https://perma.cc/K9TY-JAVA]. Games that were

postponed one day or more through December 7, 2020, include: Week 4 (Pittsburgh Steelers

at Tennessee Titans and New England Patriots at Kansas City Chiefs), Week 5 (Buffalo Bills

at Tennessee Titans), Week 6 (Kansas City Chiefs at Buffalo Bills, Denver Broncos at New

England Patriots, and New York Jets at Miami Dolphins), Week 7 (Pittsburgh Steelers at

Baltimore Ravens and Jacksonville Jaguars at Los Angeles Chargers), Week 8 (Los Angeles

Chargers at Denver Broncos), Week 10 (Los Angeles Chargers at Miami Dolphins), Week

11 (Denver Broncos at Miami Dolphins and New York Jets at Los Angeles Chargers), Week

12 (Baltimore Ravens at Pittsburgh Steelers), and Week 13 (Dallas Cowboys at Baltimore

Ravens, Washington Football Team at Pittsburgh Steelers, and Buffalo Bills at San Francisco

49ers).

1064 UTAH LAW REVIEW [NO. 5

B. Interpreting Data with Caveats and Limitations

This study’s methodology and findings have several limitations. For clarity, I

enumerate them in a format that is similar to the data findings.

1) Schools responded to my survey request with varying degrees of openness

and cooperation, as well as reluctance. To repeat part of Finding 1, three schools

provided enough information to close my FOIA request without rejecting it but

offered almost no information about COVID-19 safety protocols.

However, other schools used my inquiry to publicize their protocols. Two

schools that replied to my standard FOIA request openly copied people in the

university president’s office who appeared to be senior staff members. These replies

suggested that the presidents of these schools viewed COVID-19 testing protocols

in football as an important matter. These replies may have signified that these

schools had robust accountability from their athletic departments to campus leaders.

2) Schools may have updated their policies after responding to my request in

mid-October, just as the NFL and NFLPA updated their protocols in October

2020.

138

My findings compared pro and college football COVID-19 policies at or

near the start of their seasons. Policy revisions after my requests in mid-October

were not part of my findings.

3) Survey responses provided data about policies but not practices. More

rigorous practices may have been implemented apart from the policies. It is also

possible, however, that a school’s practices fell short of their prescribed procedures.

Again, this study compared only COVID-19 football written policies.

4) The Power 5 conferences took varying approaches in their COVID-19

protocols. Unlike the thirty-two NFL teams governed by uniform protocols and

enforced by a powerful league, these sixty-five schools operated under different

rules, perhaps accentuated by regional politics. The Big 10 alone illustrated this

dynamic. University presidents initially voted 11-3 not to proceed with a football

season.

139

The fact that any conference promulgated health and safety standards did

not ensure that member schools adopted these policies. In short, while my study

purports to compare NFL and NCAA COVID-19 protocols, my study actually

compares college football policies at nineteen schools spread over five conferences

to one professional league operating under a unified set of rules.

5) My coding of data likely had some degree of inconsistency due to the varying

formats that schools used to communicate their COVID-19 policies. The PDF files

I received ranged from heavily bulleted information presented succinctly in a short

document to a master plan laid out in a densely worded, lengthy document with

minute details. Some schools sent policies piecemeal in several files that sometimes

created confusion. When considering data coding challenges, policies used basic

138

See ADDENDUM, supra note 1; see also NFL and NFLPA COVID-19 Monitoring

Testing Results, NAT’L FOOTBALL LEAGUE (Oct. 7, 2020),

https://operations.nfl.com/updates/football-ops/nfl-and-nflpa-covid-19-monitoring-testing-

results/ [https://perma.cc/MUZ5-D76D].

139

Schoenfeld, supra note 114.

2021] COVID-19 PROTOCOLS 1065

terms in slightly different ways that could result in meaningful differences in

administering a player safety program. For example, some policies specified a

temperature for a fever that would be taken at an athletic facility; others used a

player’s self-report of fever; others asked a player if he felt feverish. I coded these

policies the same, even though they could have meant different things.

6) My sample is small. Nonetheless, small samples are occasionally

published,

140

including a cardiological study of a small sample of Ohio State players

who tested positive for COVID-19.

141

On the other hand, non-responses are more of

a concern: They could reflect bias in how my sample was drawn, omitting schools

with weaker safety protocols. In light of this possibility, I included information in

Table 1, such as conference affiliation and the number of games in which a school

had a postponement or cancellation. I also compared game-disruption numbers to

see if they significantly correlated to non-responding schools. For example, the

twenty-two private and public schools that did not respond to my survey experienced

thirty-eight disrupted games (1.72 disrupted games per school), while the nineteen

schools that provided a usable response had forty-one disrupted games (2.16

disrupted games per school). These differences were not statistically significant.

V. CONCLUSION: COLLECTIVE BARGAINING BENEFITS FOOTBALL PLAYERS

The COVID-19 pandemic provided a natural experiment to compare whether

collectively bargained and unilaterally implemented safety protocols for football

players would be the same. One would expect roughly equal safety measures

because NFL and Power 5 football games are so similar, and both were tied to large

but disrupted revenue streams.

142

One would assume that managerial concern for

player safety would be the same. However, my study showed real differences

between pro and college football. Collectively bargained COVID-19 protocols for

NFL players were superior to the unilaterally imposed COVID-19 protocols for

college football players. This is the main conclusion of my study. As I now explain,

140

For other research with small samples, see Pamela C. Regan, Saloni Lakhanpal &

Carlos Anguiano, Relationship Outcomes in Indian-American Love-Based and Arranged

Marriages, 110 PSYCH. REPS. 915 (2012) (comparing relationship outcomes in love-based

and arranged marriages in a U.S. sample of fifty-eight Indian participants); Konstantina

Vasileiou, Julie Barnett, Susan Thorpe & Terry Young, Open Access Characterizing and

Justifying Sample Size Sufficiency in Interview-Based Studies: Systematic Analysis of

Qualitative Health Research over a 15-Year Period, 18 BMC MED. RSCH. METHODOLOGY

148 (2018) (justifying small sample size in interview-based studies); Kathleen E. Etz1 &

Judith A. Arroyo, Small Sample Research: Considerations Beyond Statistical Power, 16

SOC’Y FOR PREVENTION RSCH. 1033 (2015) (explaining that small sample research can be

important where serious health concerns arise in vulnerable and underrepresented

populations).

141

Saurabh Rajpal, Matthew S. Tong, James Borchers, Karolina M. Zareba, Timothy

P. Obarski, Orlando P. Simonetti & Curt J. Daniels, Cardiovascular Magnetic Resonance

Findings in Competitive Athletes Recovering from COVID-19 Infection, 6 JAMA

CARDIOLOGY 116 (2021).

142

See Bell & Kirschman, supra note 110.

1066 UTAH LAW REVIEW [NO. 5

my study contributes to research streams for worker safety in unionized workplaces,

company unionism, and employment for NCAA players.

A. Safety Practices in Unionized Workplaces Are Superior to Nonunion

Workplaces.

143

A 5% increase in occupational fatalities occurs for every 1% decline in union

representation of employees in the workforce.

144

Workplaces with unions are more

likely to offer intensive safety training.

145

Unions also improve enforcement of

143

For more discussion regarding why unions play an important role in workplace

safety, see Barbara Hilyer, Laura Leviton, Lynn Overman & Snigdha Mukherjee, A Union-

Initiated Safety Training Program Leads to Improved Workplace Safety, 24 LAB. STUD. J.

53 (2000) (suggesting that unions play an important role in workplace safety); Jill Kriesky

& Edwin Brown, The Union Role in Labor-Management Cooperation: A Case Study at the

Boise Cascade Company’s Jackson Mill, 18 LAB. STUD. J. 17 (1993); Margrit K.

Hugentobler, Thomas G. Robins & Susan J. Schurman, How Unions Can Improve the

Outcomes of Joint Health and Safety Training Programs, 15 LAB. STUD. J. 16 (1990). Many

labor agreements grant employees a right to refuse unsafe work—and some contracts. See

George R. Gray, Donald W. Myers & Phyllis S. Myers, Collective Bargaining Agreements:

Safety and Health Provisions, 121 MONTHLY LAB. REV. 13, 27 (1998). For a more recent

discussion, see Robert R. Sinclair, James E. Martin & Lindsay E. Sears, Labor Unions and

Safety Climate: Perceived Union Safety Values and Retail Employee Safety Outcomes, 42

ACCIDENT ANALYSIS & PREVENTION 1477, 1486 (2010) (“[T]he link between union safety

values and safety motivation could reflect a social exchange process in which employees

who feel supported by their union reciprocate with greater safety motivation or it could

reflect a self-regulatory processes employees use to manage safety performance tradeoffs.”).

144

Michael Zoorob, Does ‘Right to Work’ Imperil the Right to Health? The Effect of

Labour Unions on Workplace Fatalities, 75 OCCUPATIONAL & ENV’T MED. 736 (2018)

(estimating the effect of unionization on occupational mortality per 100,000 workers from

1992–2016.).

145

Xuanwen Wang, Rebecca Katz & Xiuwen Sue Dong emphasize that:

[U]nion firms reported better performance of safety management and safety

culture than nonunion firms . . . . Union firms also adopted most of the

organization’s safety practices, safety policies, and safety culture indicators

included in this report. Moreover, union firms were more likely and frequently to

offer and require general safety and health training, and OSHA 10-hour and 30-

hour training to their employees. The results confirm that labor-management

cooperation is a win-win solution for improving safety management and safety

culture at workplaces which benefits not only construction workers, but also

construction contractors.

Xuanwen Wang, Rebecca Katz & Xiuwen Sue Dong, Union Effect on Safety Management

and Safety Culture in the Construction Industry, CPWR Q. DATA REP. 1, 20 (2018),

https://www.cpwr.com/wp-content/uploads/2018/05/Quarter1-QDR-2018.pdf

[https://perma.cc/Q7LW-JA33] (citation omitted).

2021] COVID-19 PROTOCOLS 1067

safety laws.

146

Compared to nonunion counterparts, union employers use emerging

technologies such as drones, wearable devices, lasers, and robotics.

147

Union

employers are also more likely to have site-specific safety plans.

148

My study is relevant to these broader areas of workplace safety. The NFL,

comprised of thirty-two employers engaged in league-wide collective bargaining, is

the union employer in this natural experiment. Sixty-five Power 5 schools are the

nonunion, de facto employers. The higher proportion of disrupted college football

games implies that the lack of collectively bargained COVID-19 protocols at Power

5 schools hurt college football as an entertainment enterprise.

149

A study of Ohio

State athletes with COVID-19 infections found that almost 46% had a physical

predictor of future heart disease.

150

These results suggest that nonunion playing

146

See David Weil, Building Safety: The Role of Construction Unions in the

Enforcement of OSHA, 13 J. LAB. RSCH. 121, 127–30 (1992) (finding that unionized

construction workplaces provide more safety to employees). Unionized workplaces find

more OSHA violations than nonunion counterparts, reduce hazard abatement periods set by

OSHA, and add potency to calls for OSHA inspections. Id. Unions also increase an

employer’s price of being cited for OSHA violations because more of these problems are

flagged for inspectors. Id.

147

Survey: Construction Firms with Union Workers More Likely to Engage in Safety

Best Practices, Training, SAFETY+HEALTH (Sept. 19, 2018), https://www.safetyandhealth

magazine.com/articles/17466-construction-firms-with-union-workers-more-likely-to-eng

age-in-safety-best-practices-training-survey [https://perma.cc/K9NR-XLKF] (finding, in a

survey of 334 firms, 90 of which employed only union workers, 109 of which employed

union and nonunion employees, and 135 of which employed only nonunion employees, that

“78.9 percent of union firms perform job hazard or safety analyses before construction starts,

compared with 55.6 percent of nonunion firms,” and “66.8 percent of union firms conduct

‘prompt/thorough’ near-miss and incident investigations, compared with 49.6 percent of

nonunion firms”).

148

Id. (“86.9 percent of union firms have a site-specific safety and health plan,

compared with 68.9 percent of nonunion firms.”).

149

See supra Table 11.

150

Rajpal et al., supra note 141. CMR imaging in 26 college athletes who tested positive

for COVID-19 (15 males, mean age 19.5 years) in football, soccer, lacrosse, basketball, and

track showed that 26.9% reported mild symptoms, while others were asymptomatic; none

showed heart-beat wave changes on electrocardiogram, and none had elevated serum levels

of troponin I. Id. at 118. However, after cardiac MRIs were performed on these subjects, four

players (15%, all males) had imaging consistent with myocarditis. Id. Two players also

exhibited mild heart condition symptoms (shortness of breath). Twelve players (46%) had

LGE, a medical acronym for late gadolinium enhancement. Id. Some small studies have

found that LGE observed by cardiac magnetic resonance testing “is a predictor of adverse

cardiovascular outcomes in patients with nonischemic cardiomyopathy (NICM).” Sujith

Kuruvilla, Nebiyu Adenaw, Arabindra B. Katwal, Michael J. Lipinski, Christopher M.

Kramer & Michael Salerno, Late Gadolinium Enhancement on Cardiac Magnetic Resonance

Predicts Adverse Cardiovascular Outcomes in Nonischemic Cardiomyopathy: A Systematic

Review and Meta-Analysis, 7 CIRCULATION: CARDIOVASCULAR IMAGING 250, 250 (2014)

(finding that patients with LGE had higher annualized mortality (4.7% for LGE-positive

subjects versus 1.7% for LGE-negative subjects)).

1068 UTAH LAW REVIEW [NO. 5

conditions exposed college football players to long-term health risks. According to

the Myocarditis Foundation, this heart condition is related to 22% of sudden cardiac

deaths in athletes thirty-five years of age and younger.

151

By comparison, pro

football players had collectively bargained protocols for special protections and

enhanced isolation for individual risk factors such as race, diabetes, hypertension,

and obesity.

152

My conclusions relate to collective bargaining in professional sports. The

NLRA creates a duty to bargain wages, hours, and terms and conditions of

employment.

153

This legal obligation includes bargaining over workplace safety

conditions.

154

More closely related to COVID-19 safety protocols, the National

Labor Relations Board ruled that employers must bargain a drug-testing policy with

a union.

155

These labor law developments paved the way for major leagues and

151

See Josh Peter, ‘It Saved My Kid’s Life:’ Why Aren’t All College Athletes with

COVID-19 Getting MRI Exams?, USA TODAY (Dec. 31, 2020, 12:47 PM),

https://www.usatoday.com/story/sports/ncaab/2020/12/30/covid-19-should-athletes-have-

cardiac-mri-before-returning-play/4080522001/ [https://perma.cc/BQ25-5F24].

152

See ADDENDUM, supra note 1, at 11.

153

The NLRA provides only a general statement of an employer’s and union’s mutual

obligation to bargain:

For the purposes of this section, to bargain collectively is the performance of the

mutual obligation of the employer and the representative of the employees to meet

at reasonable times and confer in good faith with respect to wages, hours, and

other terms and conditions of employment, or the negotiation of an agreement, or

any question arising thereunder, and the execution of a written contract

incorporating any agreement reached if requested by either party, but such

obligation does not compel either party to agree to a proposal or require the

making of a concession. . . .

NLRA, supra note 49, at 29 U.S.C. § 158(d); See also NLRB v. Katz, 369 U.S. 736, 747

(1962) (“Unilateral action by an employer without prior discussion with the union does

amount to a refusal to negotiate about the affected conditions of employment under

negotiation, and must of necessity obstruct bargaining, contrary to the congressional

policy.”).

154

E.g., NLRB v. Am. Nat’l Can Co., 924 F.2d 518, 522 (4th Cir. 1991) (holding that

the “[u]nion’s right to information that is relevant to the Union’s performance of its

responsibilities is statutory and not contractual, especially when it concerns health and safety

conditions”).

155

See Johnson-Bateman Co., 295 N.L.R.B. 180 (1989); Kysor Ind. Corp., 307

N.L.R.B. 598 (1992); Cf. Star Tribune Div., 295 N.L.R.B. 543 (1989) (holding that drug

testing for job applicants is not a mandatory subject of bargaining). The employer in

Johnson-Bateman Co. argued that it had a managerial right to impose drug testing without

mandatory bargaining—a view that is similar to how colleges formulated and implemented

COVID-19 testing policies without interacting with the NCAA’s Student-Athlete Advisory

Committee. See Johnson-Bateman Co., 295 N.L.R.B. at 184; NCAA, Report of the NCAA

Division I Student-Athlete Advisory Committee for April, July, and August, supra note 88

2021] COVID-19 PROTOCOLS 1069

player unions to bargain over testing athletes for illicit and performance-enhancing

drugs—largely an interest of management.

156

Collective bargaining allowed player unions to bring their health and safety

issues to negotiations with the leagues. For perspective, long before COVID-19, the

NFL and NFLPA agreed to substantial limits on full-pad, full-contact practices, a

safety measure to limit concussions.

157

The NCAA lacks these limits on hitting

(none of the committee minutes mention discussions over COVID-19 testing policies with

the NCAA). The NLRB rejected the employer’s position in Johnson-Bateman Co. that it had

a unilateral right to dictate drug testing, even if the employer’s purpose was to promote a

safe workplace. Johnson-Bateman, 295 N.L.R.B. at 182 (concluding that the “newly imposed

requirement of drug/alcohol testing for employees who require medical treatment for work

injuries is a mandatory subject of bargaining”). The NLRB added that “we find the

drug/alcohol testing requirement to be both germane to the working environment, and outside

the scope of managerial decisions lying at the core of entrepreneurial control.” Id. In a related

vein, physical testing of employees is part of an employer’s duty to bargain. See LeRoy

Machine Co., 147 N.L.R.B. 1431, 1432, 1438–39 (1964); see also Lockheed Shipbuilding

& Constr. Co., 273 N.L.R.B. 171, 178 (1984) (holding that a company could not use medical

screening programs for the purpose of terminating new employees or refusing to hire

applicants without notifying, bargaining, and agreeing with the relevant Unions); Lockheed

Shipbuilding & Constr. Co., 278 N.L.R.B. 18 (1986) (supplementing the prior decision).

156

See Glenn M. Wong & Richard J. Ensor, Major League Baseball and Drugs: Fight

the Problem or the Player?, 11 NOVA L. REV. 779, 794–804 (1987) (reviewing the origins

of drug testing in professional baseball in the 1980s); Stephen F. Brock & Kevin M.

McKenna, Drug Testing in Sports, 92 DICK. L. REV. 505, 513–32 (1988) (reviewing drug

testing in professional sports in the 1980s). “In contrast to the situation in professional

football and basketball, major league baseball (MLB) has in effect no agreement expressly

governing drug testing of its players.” Id. at 518–19; see also MAJOR LEAGUE BASEBALL,

JOINT DRUG PREVENTION AND TREATMENT PROGRAM, 8, 15–17, 42, (2006),

http://www.mlb.com/pa/pdf/jda.pdf [https://perma.cc/LBE5-X3Q5] (last visited July 9,

2021) (banning performance-enhancing substances, providing random drug testing both

during the season and the offseason, and imposing significant penalties at Major League

Baseball, Major League Baseball’s Joint Drug Prevention and Treatment Program); Adam

M. Finkel, Christopher R. Deubert, Orly Lobel, I. Glenn Cohen & Holly Fernandez Lynch,

The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to

Protect NFL Workers, 60 ARIZ. L. REV. 291, 347 (2018) (“Since 1968, The NFL and NFLPA

have negotiated ten CBAs. The most recent CBA (executed in 2011) is 301 pages long and

governs nearly every aspect of the NFL. Thus, . . . the parties have resolved most issues

concerning player health and safety via the collective bargaining process. . . .”).

157

Mark Maske, New Rules on NFL Contact Haven’t Altered Training Camps Much,

WASH. POST (Aug. 13, 2011), https://www.washingtonpost.com/sports/redskins/new-rules-

on-nfl-contact-havent-altered-training-camps-much/2011/08/13/gIQA68BvDJ_story.html

[https://perma.cc/6ZHF-UAWN] (“[The] medical director of the NFL Players Association[]

said the union’s goal [in proposing this limitation] was to reduce players’ exposure to

practice-field blows to the head by 20 to 25 percent.”); see also Alan Blinder, Football

Practices Pose More Concussion Risk Than Games, Study Suggests, N.Y. TIMES (Feb. 1,

2021), https://www.nytimes.com/2021/02/01/sports/concussions-college-football-practice.

html [https://perma.cc/T8UL-S5MB].

1070 UTAH LAW REVIEW [NO. 5

during practices,

158

with alarming consequences for college players.

159

This

difference in safety protection for NFL and NCAA football players was repeated

during the pandemic. Just before the virus reached severe transmission levels in the

U.S. in 2020, the NFL and NFLPA entered into a labor agreement that covered a

wide range of health and safety polices to benefit players’ safety.

160

A short time

later, they negotiated the addendum for COVID-19 protocols. Similar to

construction unions that rigorously enforce safety standards,

161

the NFLPA set up a

whistleblower hotline to report breaches of these safety policies and practices.

162

Also, like unions in the construction industry, the NFLPA and NFL adopted state-

of-the-art technology—in this instance, KINEXON contact tracking devices.

163

found no evidence of this technology adoption in survey responses, though later in

the fall, at least one conference adopted KINEXON.

164

158

Id. (explaining that while the NCAA has guidelines, its disjointed rule-making

process allows leagues to set their own policies and only one league has opted to ban full-

contact hits during practice).

159

Michael A. McCrea, Alok Shah, Stefan Duma, Steven Rowson, Jaroslaw Harezlak,

Thomas W. McAllister, Steven P. Broglio, Christopher C. Giza, Joshua Goldman, Kenneth

L. Cameron, Megan N. Houston, Gerald McGinty, Jonathan C. Jackson, Kevin Guskiewicz,

Jason P. Mihalik, M. Alison Brooks, Paul Pasquina & Brian D. Stemper, Opportunities for

Prevention of Concussion and Repetitive Head Impact Exposure in College Football

Players, 78 JAMA NEUROLOGY (2021) (concluding that most concussions and High Impact

Events occurred during football practices and the pre-season).

160

A summary of these policy improvements and key benefits includes:

Improved health and safety: guaranteed funding for research on training methods,

equipment, field surfaces, and medical care; the formation of a new committee to

design safety standards for equipment; the extension of training camp acclimation

periods; further strengthened credentialing standards for team medical and

training staffs; enhanced enforcement of the concussion protocol; and additional

joint research funding.

NFL, 2020 NFL-NFLPA CBA: Need to Know, https://operations.nfl.com/inside-football-

ops/players-legends/2020-nfl-nflpa-cba-need-to-know/ [https://perma.cc/H5J2-MD4Q] (last

visited July 9, 2021).

161

Weil, supra note 146, at 130.

162

Alex Prewitt, The NFLPA Has Set Up a Whistleblower Hotline to Report Health and

Safety Violations, SPORTS ILLUSTRATED (Aug. 5, 2020), https://www.si.com/nfl/2020/08/05/

nflpa-whistleblower-hotline-health-safety [https://perma.cc/3VLN-FJRX].

163

Supra, Finding 8.

164

Pac-12 to Utilize KINEXON, supra note 122.

2021] COVID-19 PROTOCOLS 1071

B. “Company Unionism” Continues Long After Enactment of the NLRA

SAAC’s nearly complete silence on COVID-19 policies signified its captive

role as a voice for NCAA players.

165

SAAC’s cooptation mirrored company unions

in the years preceding the NLRA.

166

These organizations proliferated during the

Great Depression.

167

Employers implemented them in response to growing calls for

legislation to allow collective bargaining for workers. The N.R.A. encouraged

employers voluntarily to bargain with unions.

168

It was a sop to workers, similar to

current Name, Image, and Likeness (NIL) laws that prohibit NCAA schools from

penalizing college athletes from marketing themselves for money.

169

Like the

165

NCAA, Report of the NCAA Division I Student-Athlete Advisory Committee for

April, July, and August, supra note 88.

166

Stanford SAAC, supra note 91.

167

U.S. DEP’T OF LAB. BUREAU LAB. STAT., BULL. NO. 2070, HANDBOOK OF LAB.

STAT. supra note 75, at 412 tbl. 165 col. 7.

168

Congress passed the National Industrial Recovery Act in 1933 “[t]o encourage

national industrial recovery, to foster fair competition, and to provide for the construction of

certain useful public works . . . .” National Industrial Recovery Act (NIRA), ch. 90, 48 Stat.

195 (1933), invalidated by A.L.A. Schechter Poultry Corp. v. U.S., 295 US. 495, 551 (1935).

In its brief time as a transitional labor law that was eventually replaced by the National Labor

Relations Act, NIRA (also called the N.R.A.) spurred workers to join unions and also

prompted employers to blunt this development by forming “company unions.”

Concurrent with this growth in trade unionism was an even greater increase in

company unions. Of all the company unions in existence in 1935, nearly two-

thirds were established during the N.R.A. In a number of plants, both company

unions and trade unions were established, with overlapping of membership and

jurisdiction.

U.S. DEP’T. OF LAB. BUREAU LAB. STAT., BULL. NO. 634, CHARACTERISTICS OF COMPANY

UNIONS 28 (1937).

169

California offers an analogous development to company unions as a half-measure

for NCAA players. In 2019, the state enacted a “pay to play” law that allows NCAA athletes

to market their name, image, and likeness (NIL) for monetary compensation without

incurring a penalty from a California public university or college. S.B. 206, 2019-2020 Leg.,

Reg. Sess., ch. 383 (Cal. 2019). Section 2 adds to Section 67457 of the Education Code,

stating:

A postsecondary educational institution shall not uphold any rule, requirement,

standard, or other limitation that prevents a student of that institution participating

in intercollegiate athletics from earning compensation as a result of the use of the

student’s name, image, or likeness. Earning compensation from the use of a

student’s name, image, or likeness shall not affect the student’s scholarship

eligibility.

Id. § 67457(a)(1).

1072 UTAH LAW REVIEW [NO. 5

N.R.A., NIL laws obliquely address a more fundamental concern of workers. N.R.A.

shielded workers from “yellow dog” contracts that employers required workers to

sign as a condition of employment.

170

Similarly, the NCAA’s strict limits on

financial assistance for players,

171

and related penalties for violations,

172

are like the

take-it-or-leave-it terms in yellow dog contracts—agreements that employers forced

workers to sign to prohibit their joining a union.

173

NIL legislation provides college

players a work-around for earning money related to their NCAA activities but fails

to address the root problem of the NCAA’s self-serving amateurism model. It is

likely that the NFL players association would not have been a strong voice during a

pandemic if the N.R.A. had not been replaced by the NLRA, with its legal process

for unions to bargain with employers.

174

By early 2020, dozens of states considered similar legislation. See Alan Blinder, After

California Law, Statehouses Push to Expand Rights of College Athletes, N.Y. TIMES (Jan.

13, 2020), https://www.nytimes.com/2020/01/13/sports/ncaa-athletes-pay-california.html

[https://perma.cc/J3QX-M6LR]. More recently, the NCAA has announced plans to allow

players to accept NIL compensation. See Billy Witz, NCAA Outlines Plans for Players to

Make Endorsement Deals, N.Y. TIMES (April 29, 2020), https://www.nytimes.com/2020/04

/29/sports/ncaabasketball/ncaa-athlete-endorsements.html [https://perma.cc/3BT6-FKCJ].

170

See Impact of the Courts Upon the NRA Program: Judicial Administration of NIRA,

44 YALE L.J. 90, 106 (1934) (“A supplemental right to that of collective bargaining has also

been acquired by labor through the medium of Section 7(a). This is the negative, but

nevertheless, important, right of freedom from ‘yellow dog’ contracts.”).

171

2020–21 NCAA MANUAL, supra note 48, at art. 12.01.4 (“Permissible Grant-in-Aid.

A grant-in-aid administered by an educational institution is not considered to be pay or the

promise of pay for athletics skill, provided it does not exceed the financial aid limitations set

by the Association’s membership.”); see also id. at art. 15.1 (“Maximum Limit on Financial

Aid—Individual. [A] A student-athlete shall not be eligible to participate in intercollegiate

athletics if he or she receives financial aid that exceeds the value of the cost of attendance as

defined in Bylaw.”).

172

Regarding “Amateur Status,” the 2020–21 NCAA Manual notes that:

An individual loses amateur status and thus shall not be eligible for intercollegiate

competition in a particular sport if the individual: . . . (a) Uses athletics skill

(directly or indirectly) for pay in any form in that sport; (b) Accepts a promise of

pay even if such pay is to be received following completion of intercollegiate

athletics participation . . . .

2020–21 NCAA MANUAL, supra note 48, art. 12.1.2.

173

A “yellow dog” contract was its prohibition against the employee from joining a

union. Courts uniformly struck down laws that barred these employment contracts. See

Federal Protection of Collective Bargaining Under the Railway Labor Act of 1926, 40 YALE

L. J. 92, 93 (1930). For a more comprehensive treatment of these contracts, see Cornelius

Cochrane, Why Organized Labor Is Fighting Yellow Dog Contracts, 15 AM. LAB. LEG. REV.

227 (1925).

174

Senator Robert Wagner described the significance of a law that would enable

employees to bargain over wages and conditions of employment when he remarked: “While

2021] COVID-19 PROTOCOLS 1073

C. Employment for NCAA Players Is More Appropriate than Their Outmoded

Amateur Status

This study shifts the perspective for treating NCAA players as employees. Pay-

for-play remains important given that NCAA conferences and athletic programs reap

a financial bonanza

175

(and considering the large disparity in wealth generated by

Black players that is transferred as rents to white coaches).

176

However, player safety

and welfare are an important justification for legalizing the employment of NCAA

players.

By using data, this study shows specific areas where Power 5 schools did not

manage player health and welfare with the same rigor as the NFL and players

associations. College football had proportionally more disrupted games than the

NFL.

177

Making this disparity more remarkable, college teams in the Big 12 and

SEC announced that games would be played provided that teams could field a roster

with fifty-three active players—in other words, a team would be required to play

even if thirty-two players on its roster of eighty-five scholarship players were unable

to play.

178

These findings raise worrisome questions about the long-term impact of

playing a season of college football during the pandemic of 2020. It bears repeating

that an Ohio State medical study showed that 46% of COVID-19 positive players

had cardiac imaging associated with much higher mortality rates over time.

179

Who

will bear the cost if they suffer significant heart problems or die because of heart-

related conditions as middle-aged adults? The players will almost certainly bear

the bill explicitly states the right of employees to organize, their unification will prove of

little value if it is to be used solely for Saturday night dances and Sunday afternoon picnics.”

Natl. Lab. Relations Bd.: Hearing on S. 1958 Before the S. Comm. on Educ. & Lab., 74th

Cong. 1373, 1419 (1935) (statement of Sen. Robert Wagner).

175

See NCAA, Financial Database Homepage Data Summary (Nov. 2019), (copy on

file with author). In 2018, “FBS DI Autonomy Schools” generated $7.98 billion, with 34.1%

coming from media rights, yielding approximately $2.69 billion. See also Schoenfeld, supra

note 114 (noting that in 2017, Big 10 signed a $2.64 billion, six-year deal with Fox Sports,

ESPN, and CBS).

176

Craig Garthwaite, Jordan Keener, Matthew J. Notowidigdo & Nicole F.

Ozminkowski, Who Profits from Amateurism? Rent Sharing in Modern College Sports,

NAT’L BUREAU ECON. RSCH., (Working Paper No. 27734, Aug. 2020),

http://www.nber.org/papers/w27734 [https://perma.cc/Z26Z-HN5T]. This recent economics

study concluded that “(t)he athletes generating the rents are more likely to be [B]lack and

come from lower-income neighborhoods, and the rents are shared with a set of athletes and

coaches that are more likely to be white.” Id. at 34.

177

Supra Table 11.

178

David Cobb, SEC Announces Minimum Roster Requirements for Its 2020 College

Football Season, COVID-19 Protocols, CBS SPORTS (Sept. 18, 2020, 2:17 PM),

https://www.cbssports.com/college-football/news/sec-announces-minimum-roster-require

ments-for-its-2020-college-football-season-covid-19-protocols/ [https://perma.cc/6LT6-

3JZM].

179

Rajpal et al., supra note 141.

1074 UTAH LAW REVIEW [NO. 5

those costs without any financial assistance from their schools. In contrast, the NFL

and NFLPA have negotiated retiree health and welfare benefits.

180

As employees,

NFL players are also eligible to claim workers’ compensation treatment arising out

of an injury they incurred in the course of their employment.

181

College football

players have nothing like this.

182

Workers’ compensation laws require a claimant to

show that an injury was incurred in the course of employment, thus excluding

injuries incurred by amateur athletes.

183

In short, college football players were young adults during the 2020 season who

played without any legal representation and without a student advisory committee

that advocated for their safety. These players might pay football-related medical

costs out of their pockets in the 2030s and beyond for playing during a pandemic in

2020. At this early point in observing COVID-19 effects, several college athletes

have died,

184

several suffered severe infections,

185

and a star basketball player

180

NFLPA, supra note 83, at art. 53, 60–63.

181

A former player for the Chicago Bears petitioned under the Illinois Worker’s

Compensation Act for “open medical rights” related to the progression of an injury incurred

during games he played for the team. Rashied Davis, Petitioner, 08 IL. W.C. 2862 (Ill. Indus.

Com’n Nov. 2, 2018). After his career ended, the player was entitled to open medical rights

under Section 8(a) of the Act “for any reasonable and related medical expenses relating

specifically to neck or cervical spine, subject to review per provisions of the Act.” Id. at *2.

The Commission also ordered the team to authorize and pay for recommended spinal disc

surgery and related medical expenses prospectively.

182

Michael H. LeRoy, Harassment, Abuse, and Mistreatment in College Sports:

Protecting Players Through Employment Laws, 42 BERKELEY J. LAB. & EMP. L 117, 163

(2021) (“NCAA athletes would be eligible for medical treatment, long-term care, partial

income replacement, and compensation for physical or psychological impairment under state

workers’ compensation laws.”).

183

Rensing v. Indiana State Univ. Bd. of Trs., 444 N.E.2 1170, 1174 (Ind. 1983)

(“Rensing did not receive ‘pay’ for playing football at the University within the meaning of

the Workmen’s Compensation Act; therefore, an essential element of the employer-

employee relationship was missing in addition to the lack of intent.”).

184

Lisa Kearns, Kathleen Bachynski & Arthur L. Caplan, Add Covid-Related

Myocarditis, Mechanical Ventilation, and Death to this Year’s Football Risks, STAT (Nov.

26, 2020) https://www.statnews.com/2020/11/26/myocarditis-mechanical-ventilation-

death-join-football-risks-covid-19/ [https://perma.cc/3VQG-2DWA] (detailing how Jamain

Stephens Jr., a defensive lineman for California University of Pennsylvania, died from a

blood clot in his heart after contracting COVID-19); Nathan Kalman-Lamb, Derek Silva &

Johanna Mellis, A Ruthlessly Exploitative College Football Season Finally Draws to a Close,

THE GUARDIAN (Jan. 11, 2021, 5:00 PM) https://www.theguardian.com/sport/2021/jan/11/

college-football-covid-19-coronavirus [https://perma.cc/HLY6-A7QF] (detailing how

Appalachian State University student and basketball player, Chad Dorrill, died from COVID-

19).

185

David M. Hale, Clemson Tigers’ Justin Foster Retires from Football, Citing Issues

with Asthma, COVID-19, ESPN (Feb. 24, 2021), https://www.espn.com/college-

football/story/_/id/30958869/clemson-justin-foster-retires-citing-issues-asthma-covid-19

[https://perma.cc/YH52-RA8Y] (reporting that Justin Foster and Xavier Thomas

2021] COVID-19 PROTOCOLS 1075

collapsed during a game due to a heart condition associated with COVID-19.

186

High

school athletes who played in 2020 are also showing signs of heart damage.

187

The

better players of this group may play in college—again, without the benefit of an

employment relationship, access to workers’ compensation, or the ability to form a

labor union—and be forced to use a COVID-19 plan that was inferior to the plan

that the NFL and NFLPA bargained.

The best model for allowing these players to form a union is the Railway Labor

Act, an early labor law that spans public- and private-sector employment and relates

to specific rail and air transportation industries.

188

This law was passed by Congress

because of the singular importance of uninterrupted interstate travel and the need to

minimize labor disputes and disruptions.

189

An industry-specific labor law for major

experienced severe COVID-19 symptoms that respectively ended and limited their football

careers). See also Zach Osterman, Viral Facebook Post from IU Football Player’s Mom

About Son’s COVID-19 Issues Serves as Warning, INDYSTAR (Aug. 3, 2020, 5:25 PM),

https://www.indystar.com/story/sports/college/indiana/2020/08/03/iu-football-players-

mother-posts-covid-19-diagnosis/5577215002/ [https://perma.cc/74NL-574Y] (detailing

how Brady Feeney, a freshman lineman, was hospitalized after contracting a severe infection

during summer workouts with this team).

186

Gainesville Sun Ed. Bd., Consider Health Risks for College Athletes, GAINESVILLE

SUN (Dec. 16, 2020, 12:00 PM), https://www.gainesville.com/story/opinion/2020/12/16/

editorial-consider-health-risks-college-athletes/3920074001/ [https://perma.cc/PC3P-

B6P3]. Keyontae Johnson, a twenty-one-year-old basketball player for the University of

Florida, collapsed in a December 2020 game with Florida State and was airlifted to a hospital.

Id. He was diagnosed with myocarditis, a heart condition associated with COVID-19. Zach

Abolverdi, Florida’s Keyontae Johnson Diagnosed with Heart Inflammation Following

Collapse at Game, GAINESVILLE SUN (Dec. 22, 2020, 7:10 PM EST),

https://www.gatorsports.com/story/basketball/2020/12/22/florida-gators-keyontae-johnson-

has-season-ending-heart-issue/4006117001/ [https://perma.cc/BVX3-6GNQ].

187

Kearns et al., supra note 184 (detailing how Mississippi high school football player

was hospitalized in critical condition with COVID-19).

188

NLRA, supra note 49.

189

A succinct summary of this law appears in Slocum v. Delaware, which states:

The first declared purpose of the Railway Labor Act is ‘To avoid any interruption

to commerce or to the operation of any carrier engaged therein.’ This purpose

extends both to disputes concerning the making of collective agreements and to

grievances arising under existing agreements. The plan of the Act is to provide

administrative methods for settling disputes before they reach acute stages that

might be provocative of strikes. Carriers are therefore required to negotiate with

bargaining representatives of the employees. The Act also sets up machinery for

conciliation, mediation, arbitration, and adjustment of disputes, to be invoked if

negotiations fail.

Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 242 (1950) (citations omitted).

1076 UTAH LAW REVIEW [NO. 5

revenue NCAA sports patterned after the RLA could cover public- and private-

sector institutions.

190

While my research compares NFL and Power 5 COVID-19 protocols, it

sharpens the focus on how college football bends its rules to favor its elites

191

and

amplifies an ideology of ignoring basic health and safety practices.

192

My study

documents policy discrepancies for schools within the same conference, a finding

that implies that teams did not play by the same COVID-19 rules for football.

Schools were free to adopt more rigorous policies, but some discrepancies within a

conference could mean that some schools were unable to scale up COVID-19

protocols, or worse, that they cut safety corners.

Reinforcing these unsettling possibilities, no policy required schools to report

and share information about COVID-19 practices and testing trends with their

conference or the NCAA. Nor did a policy reference a requirement to use an outside

entity—a conference or the NCAA—to monitor schools for COVID-19 policy

compliance. Considering the history of cheating in NCAA athletics,

193

this, too, was

unsettling.

190

Congress appears to have constitutional authority to regulate the NCAA as the

Sherman Act applies college athletics. See In re Nat’l Collegiate Athletic Ass’n Athletic

Grant-in-Aid Cap Antitrust Litigation, 958 F.3d 1239, 1244 (9th Cir. 2020), aff’d, Am.

Athletic Conf. v. NCAA, 141 S. Ct. 2141 (2021) (holding that the NCAA violated federal

antitrust law by limiting compensation student-athletes could receive in exchange for their

athletic services).

191

Amy Daughters, How the Big Ten Changed Its Mind Three Times and Altered the

Outcome of the 2020–21 CFB Season, FBSCHEDULES (Jan. 12, 2021),

https://fbschedules.com/how-the-big-ten-changed-its-mind-three-times-and-altered-the-out

come-of-the-2020-21-cfb-season/ [https://perma.cc/3DV6-4TRB] (describing several flip-

flops by the Big 10 in scheduling football games in 2020 and reversing its own rules to allow

Ohio State to play for the conference championship).

192

Kent Babb, A College Football Coach’s Season at War with the Coronavirus — and

His Own School, WASH. POST (Jan. 19, 2021, 2:25 PM), https://www.washingtonpost.com/

sports/2021/01/19/tony-franklin-middle-tennessee-football-coronavirus/ [https://perma.cc/

FBS6-UAU8] (providing one example, Tony Franklin, offensive coordinator for Middle

Tennessee State, who left the school after fighting with the head coach and administration

over the necessity of wearing masks to prevent spread of COVID-19).

193

The Most Notable College Sports Cheating Scandals, RANKER (June 23, 2020),

https://www.ranker.com/list/college-sports-cheating-scandals/swiperight [https://perma.cc/

D8MR-BAYT]. The list’s top scandals include: (1) Louisville’s use of sex workers to entice

players to play for a championship team in 2013 (the NCAA took away the title in 2018), (2)

Colorado football’s use of sexual escorts to recruit players under Coach Gary Barnett, (3)

UNC basketball’s 18-year practice of enrolling players in no-work classes with little faculty

supervision, (4) Oklahoma football’s offers of cars and money to players, (5) University of

Miami’s defrauding of federal Pell Grant program to funnel $220,000 to players, (6)

Alabama’s $200,000 bribe of a high school player as a recruiting inducement, (7) SMU’s

payments to football players resulting in suspension of football for two years at the school,

(8) Southwestern Louisiana’s fraudulent grading scheme for football resulting in a two-year

ban of the sport, (9) Kentucky basketball’s point-shaving scheme in 1951, and (10) Florida

State’s exam cheating scandal. Id.

2021] COVID-19 PROTOCOLS 1077

These unresolved questions underscore a more general benefit of unionization

in sports. Players on teams throughout a league can have an independent voice to

bargain—and then, to enforce—uniform conditions of competition. Ironically, this

function of a professional sports union dovetails with the foundational purpose of

the NCAA—to foster rules in athletic competitions under conditions of rigid

uniformity. Yet, the NCAA’s insistence on maintaining an obsolete ideal of

amateurism poorly serves player health while Power 5 money-making teams can

exploit player safety for the glory of winning.

194

The 2020 football season served as

a natural experiment that shed new light on how laws prohibiting college football

players from forming a labor union shortchanged players.

194

See, e.g., Billy Witz, With Injury, Justin Fields Is Taking a Big Risk for Ohio State,

N.Y. TIMES (Jan. 11, 2021), https://www.nytimes.com/2021/01/11/sports/ncaafootball/jus

tin-fields-ohio-state.html [https://perma.cc/WE9C-SRL4] (discussing a Penn State physician

who was removed from the football team after clashing with Head Coach James Franklin

over withholding medical information to injured players).