A Sign of the Times: COVID Testing as an Extra Benefit?

The coronavirus has forced thousands of college students to forgo their college experience and in-person, on-campus education. Many colleges have decided to take their instruction mostly or entirely remotely with the pandemic ravaging the country. Business Insider reports that 8% of United States colleges have wholly gone online for the Fall semester. Some of these colleges and universities include Bellevue College, the University of California at Los Angeles, Wilmington University, and, more notably, the California State University system. In contrast, most colleges opted for a hybrid instruction method, which includes mostly remote classes with some in-person instruction. This year will undoubtedly be difficult for students, teachers, and administrators. However, universities and colleges have insisted that although the decisions have been difficult, they were made to provide a safe environment for their students.

As colleges struggle to contain coronavirus clusters on their campuses, the Big 10 conference has decided to reverse its decision and proceed with a college football season in the fall. Which begs the question, what changed? The Big Ten commissioner, Kevin Warren, stated that the football season had been previously postponed due to testing and contact tracing issues. However, the commissioner says these problems have since been addressed, and the Big-10 will require student-athletes, coaches, and trainers to undergo daily testing. These tests will need to be completed before each practice and each game. But will people be able to attend the games? Besides family, probably not. But is this fair? Is it fair that student-athletes will be tested every day while students do not have the same testing access? Moreover, is payment for the impending medical expenses an NCAA violation?

Image Credit: AP / Yahoo Sports

The NCAA Division I Manual defines an extra benefit as “any special arrangement by an institutional employee or a representative of the institution’s athletics interests to provide a student-athlete or their relatives/friends a benefit not expressly authorized by the NCAA legislation.” Further, the extra benefit regulation prohibits under most circumstances, prospective enrolled student-athletes receiving goods or services based on their status as athletes. However, a general rule under the NCAA states that student-athletes’ receipt is not a violation of NCAA rules if it is demonstrated that the same benefit is generally available to the institution’s students. It is unclear where coronavirus testing fits into this equation.

The NCAA Board of Governors published a list of specific requirements that the schools must meet to conduct NCAA fall sports during the preseason, regular season, and postseason. One of the many conditions is that schools develop enhanced safety for student-athletes and essential athletics personnel. These enhancements include regular testing, separation of student-athletes and essential personnel from all other nonessential personnel, and physical distancing and masking policies during all aspects of competition.

Image Credit: Kassi Jackson / Hartford Courant

These regulations require that schools provide “regular” testing for their student-athletes to play, but what do schools require for their regular students? The arbitrary answer, it depends. MedRxiv published a preprint article based on their analysis of 500 colleges reopening plans. They found that 27 percent of the colleges plan on testing their undergraduates upon their return to campus, while 20 percent “plan to test their communities regularly to some extent.” The study noted that the colleges with larger endowments and higher academic rankings were planning to test more than those lower-ranked, fewer resourced colleges. This study pinpoints the tension between supplying adequate testing for students and the immense price of paying for the tests. Timothy White, the Chancellor of the California State University system, cited that testing half of the systems student population weekly would cost $25 million. This is a price that most universities and colleges cannot afford to pay—displaying the equity problems in the availability of testing for students and student-athletes.

Kansas State’s athletic department administered 750 coronavirus tests last week for fall sports athletes and coaches, which is required by Big-12 conference health protocols. The rest of the university’s students can volunteer to participate in a sampling program that will administer up to 275 tests per week.

Additionally, according to a Wall Street Journal analysis of testing policies in the ACC, Big 12, and SEC 600 to 950 tests will be conducted per week. Further, schools like Duke plan to test their athletes every day, consuming nearly 1,780 tests per week. Meanwhile, testing for the undergraduate population remains much scarcer. At 21 schools sharing their weekly testing data, administered tests last week have ranged from 209 at Kansas to 6,840 at Duke. If these policies seem lopsided, it’s because they are.

Image Credit: iStock.com / Hocus-Focus

However, some schools have acknowledged the possibility of unfairness and have attempted to maintain equity among their students. Many schools provide voluntary testing that students can decide to opt in to every week. If these students were to opt every week, they might get tested almost as much as the athletes. This allows students to receive tests similarly to student-athletes.

Schools should try and allow fairness among their student body populations. It remains to be seen whether the accessibility of coronavirus testing qualifies as an extra benefit. However, the NCAA requires that students are “generally” given the same benefits. Thus, it is likely not an extra benefit, as long as colleges provide adequate or reasonably related numbers of testing to students and student-athletes.

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'21 J.D. Candidate at the University at Buffalo School of Law

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