Photo source: NYSPHSAA/Facebook
It’s September, that means kids are returning to school, football is finally back, and lattes are pumpkin spiced. Not all of these fall staples were guaranteed this year. However, this past week we saw professional football start, with limited or no in-person fans, and schools around the country are welcoming students back in some capacity. As things continue to open up, people will be looking for guidance when trying to balance safety with the desire to return to some form of normalcy. Parents, students, and faculty got some guidance last week when New York State Public High School Athletic Association (NYSPHSAA) released its plan for returning to play. This plan, however, is only meant to be used for guidance if sports are offered at all. It is up to school districts to decide whether they will offer sports or not. This week Buffalo Public School District decided it would not be offering sports this fall.
The plan is a 41 page document that relies heavily on the New York State Department of Health’s Interim Covid-19 Guidance for Sports and Recreation and Interim Covid-19 Guidance for Schools.
It begins with some consideration for all sports. This includes things like: no hugging, high-fives, or fist bumps, and proper sanitation procedures. Among these considerations are those for student athletes, which provides that at least six feet between individuals must be maintained, weather indoor or outdoor, unless safety or the sport requires shorter distances. In that case, the athletes must wear a proper face covering, unless they are unable to tolerate a face covering while practicing or playing. Those not engaged in physical activity (coaches, trainers, etc.) are required to wear a face covering.
In accordance with state guidance, the plan divides sports into three categories: low, moderate, and high risk. These categories are based on the ability to: (1) maintain social distance, (2) avoid touching shared objects, (3) clean and disinfect equipment between uses, or not using shared equipment at all.
The low and moderate fall sports (cross country, field hockey, golf, gymnastics, soccer, girls swimming and diving, and girls tennis) may practice and play beginning September 21, 2020. However, high risk fall sports (volleyball and football) may only practice beginning September 21, 2020. No games or scrimmages for high risk sports are allowed until authorized by state officials or December 31, 2020.
This document is unlikely to create liability for NYSPHSAA. First, the document contains a conspicuous disclaimer that it is not intended to provide any legal advice and that member schools should always follow state and federal guidance. Second, the plan makes it clear that offering interscholastic athletics is voluntary.
As for the member schools, failure to follow the guidelines provided in this plan could be used as evidence that they acted negligently. And of course all schools are required to adhere to the minimum requirements laid out by the state or face legal ramifications.
If member schools decide not to offer interscholastic athletics are there legal remedies for the students athletes that attend that school? In Tiffany v. Ariz. Interscholastic Ass’n, 151 Ariz. 134 (Ct. App. 1986), the Arizona Court of Appeals held that the plaintiff did not have a constitutional right to participate in athletics his senior year of high school. But in its decision the court points out that there are very few absolutes in constitutional law and under certain circumstances a student may have a property right, protected by due process, in high school athletics. The examples listed by the court include: (1) where a high school athlete was deprived a previously granted scholarship. Colorado Seminary v. National Collegiate Athletic Ass’n, 417 F.Supp. 885, 895 (D.Colo. 1976) aff’d, 570 F.2d 320 (10th Cir.1978) . And (2) where participation in high school athletics was the motivating factor for rehabilitation after juvenile delinquency. Florida High School Activities Ass’n, Inc. v. Bryant, 313 So.2d 57,57 (Fla.Dist.Ct.App.1975).
In neither of examples above–where the courts did find a constitutional right to play–was the country in the midst of a pandemic. States have an implied power to protect the health and welfare of their residents. It seems pretty clear that a district opting out of fall sports would be doing so in an effort to protect the welfare of its student athletes. It is unlikely that a court would find a constitutional right to participate in high school sports when public health is at stake.