For the year 2018, the Ohio State University’s athletic department generated $205,556,663.00 in revenue,$110,000.000.00 from the football program alone.The revenue from football amounted to more than a $20 million, a 23%, increase from the 2017 season,and a $42 million, or 47%, increase from the 2013 season.This is not all profit however, as there are significant expenses associated with to fielding a Division I football team.
First, there is the cost of the 85 student-athlete scholarships that are paid out of the football team’s annual budget to the University every year. The cost of tuition at Ohio State averages, for out-of-state students, around $32,000.00 per year.That amount, multiplied by the number of Buckeye players ‘on scholarship’ cost the Ohio State football program an average of $2.7 million a year. In addition, there are facility expenses, travel and recruiting costs, of course coaches, trainers, and the football staff need to be paid, and medical expenses. Medical expenses? Yes, the Ohio State athletic department pays out approximately $1.47 million in medical expenses for all of its Division I athletic teams annually – less than 1% of its annual revenue. But, in the time of a global pandemic, medical expenses can be a complicated and problematic issue. Therefore, the Ohio State University athletic department has ‘asked’the 85 members of the football program to be ‘team players’ and assist the University in the fight against COVID 19 by swearing to do everything they can to help combat its spread. The athletic department has even given it an amusing name –The Buckeye Pledge.
The Ohio State Buckeye Pledgeinvites its football team to “help stop the spread of COVID-19” and accept the fact that he, as a student at Ohio State, may be exposed to COVID-19 and other infectious diseases. Within this two-page electronic document, the student-athlete agrees to testing and potential self-quarantining, to monitor for symptoms, to report any potential exposure in a timely manner, and to practice Centers for Disease Control and Prevention guidelines such as wearing a mask and practicing social distancing. Additionally, and without question, the player, along with his parent(s), are required to sign the Pledgebefore returning to campus for voluntary workouts, workouts which began on June 8, 2020. If the player and/or his parent(s) fail in signing or complying with my Buckeye Pledge, the student-athlete could immediately be removed from any and all athletic participation privileges and forfeit the use of any of the campus’ athletic facilities.
“That’s why we call it a pledge,” Ohio State Athletic Director Gene Smith stated. “We don’t look at that as a legal document. It’s a Buckeye Pledge.Allow us to help you so that if we face a situation, our trainers, our strength coaches, our coaches or any athletic administrator sees a student-athlete not wearing a mask or not social distancing, we can say, ‘Hey, you made a commitment. You signed a pledge. Your parents signed a pledge. Your parents are a part of this.'” “You’ve got to make a commitment,” Smith said. “If you’re going back to your apartment, with your roommates or by yourself or whatever, or if you choose to go out and have dinner somewhere now that places are reopening, you need to wear a mask. You need to social distance. We’re hammering our kids on that concept. Social distancing is the biggest challenge we’ve been having. They’re kids. They want to be close to one another.”
It is interesting to note, however, that according to this Buckeye Pledge, the athletes and their parents must accept the fact and understand that COVID-19 is a highly contagious virus and that it is possible that the athlete to catch the disease even if safety precautions recommended by the CDC, local health department, and others are followed. In addition, the student-athlete must understand and acknowledge that he can never be completely shielded from all risk associated with COVID-19 or any other infectious diseases, while a member of the Ohio State football team or as a student at the University.This section, the second to the last paragraph of the Buckeye Pledge, is the troubling part since the student-athlete may or may not understand is that this paragraph changes the Buckeye Pledgefrom that of just a pledge, to that of an assumption of risk and perhaps a waiver of liability. Yes, by signing the Buckeye Pledge the athletes are assuming all risk and may be waiving any rights or recourses against the University regarding issues surrounding COVID-19 or ‘other infectious diseases’.
See, this Buckeye Pledge,or waiver of liability, is, for all intents and purposes, a legally binding contract between the athlete and the University, especially since the student-athlete’s parents are also required to be signatories. By signing thePledge, the student-athlete may unintentionally or unknowingly agree that Ohio State University, together with its coaches, trainers, medical staff and employees, are to be held harmless, and therefore not legally responsible for any and all negligent or reckless actions or deeds committed by Ohio State or its employees associated with COVID-19 or other infectious diseases – whatever they may be.
It is important that the student-athlete and his parents know, however, that laws regarding waivers vary widely by state, and interestingly, the State of Ohio does not recognize the validity of all forms or types of liability waivers. The law of Ohio requires that waivers are to be strictly construed against the drafter, in this case the University, if the language shows any ambiguity. More importantly, however, the student-athlete may seek rescission of the contract if the terms of such are considered unconscionable, which, under Ohio law, means “the absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party.”
The athlete also has a reasonable argument that he did not have a ‘meaningful choice’ as to whether or not to sign the Buckeye Pledgesince failing to do such meant that he faced the possibility of ‘immediately being removed from any and all athletic participation privileges and forfeited the use of any athletics facilities.’In essence, what the student-athlete was faced with was a Hobson’s Choice – whether you will have this or none. In addition, the deadline for the student-athlete to sign the Buckeye Pledge, June 8th, was purposeful since, per NCAA rules, if a school plans on not renewing a student-athlete’s scholarship, it must notify the athlete in writing by July 1st. Since in most cases the coaches decide who receives a scholarship and whether or not it will be renewed, it is not a far leap to believe that if the athlete did not sign the waiver by the deadline, he faced not having a scholarship at the end of the month.
But what of this word unconscionable? The word by definition means – shockingly unfair or unjust. The fact that the Ohio State University athletic department and its Athletic Director Gene Smithfeel it is in the best interest of both the University and its student-athletes to shift any and all liability it may have as an institution for any negligent or reckless acts regarding COVID-19, onto the student-athletes is without question unfair. To shift the burden onto the backs of the young men who perform each and every Saturday during the fall months in front of hundreds of thousands of fans, the ones that help in generating over $110,000,000 annually for the athletic department, the ones who are not compensated more than the value of an athletic scholarship that could be taken away at any time or for any reason by an unhappy coach or athletic administrator, is the very meaning of unjust.
And what about the NCAA? How is any of this in the best interest of the student-athlete? How is Ohio State’s Buckeye Pledgein accordance with and in the spirit of NCAA Article 2.2 which reads – Intercollegiate athletic programs shall be conducted in a manner designed to protect and enhance the physicaland educational well-being of the student-athletesand Article 2.2.3 which reads – it is the responsibility of each member institution (which Ohio State is) to protect the health of, and provide a safe environment for, each of its participating student-athletes?
In addition, isn’t it the NCAA’s duty and obligation, that if its member institution fails in doing so, to protect the student-athlete from exploitation. The Buckeye Pledgeis the epitome of exploitation and mistreatment of a student-athlete at the hands of the Ohio State’s athletic department and the NCAA needs to do what is right by its student-athletes and force Ohio State to repeal and rescind such a Pledge.
Knight Commission on Intercollegiate Athletics.
Colombo, Hayleigh, Countdown: Ohio State Sports That Bring in the Most Revenue, and Post the Biggest Losses, Columbus Business First, October 5, 2019.
Knight Commission on Intercollegiate Athletics.
Ohio State University website
Knight Commission on Intercollegiate Athletics.
Specific language used in the Buckeye Pledge: “I understand COVID-19 is a highly contagious virus and it is possible to develop and contract the COVID-19 disease, even if I follow all of the safety precautions above and those recommended by the CDC, local health department, and others. I understand that although the university is following the coronavirus guidelines issued by the CDC and other experts to reduce the spread of infection, I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.”
Pruitt vs. Strong Style Fitness, 2011 WL 4842485.
The Buckeye Pledge.
Gene Smith’s annual salary equals $1,000,000 annually, plus $420,000 in supplemental compensation for media and other responsibilities. He is also eligible for up to $130,000 in annual bonuses.