PIAA Member Schools Return to Play in High-Stakes Game
By: Katherine Smith* Posted: 11/12/2020
With fall sports training and acclimation activities already underway, Governor Wolf announced he wanted schools across Pennsylvania to waive the fall 2020 season altogether. In response, the Pennsylvania Interscholastic Athletic Association, Inc. (PIAA), the governing body for athletic competitions for more than 1,400 public, private, and charter middle, junior, and high schools across the state, announced a revised schedule. In the absence of an outright ban, it said schools should decide, given their circumstances, whether or not to participate.
PIAA argued another lost season of play due to COVID-19 would be more harmful to student-athletes than the virus itself. But the organization was also aware of the difficulties facing school principals. Under its structure, principals would shoulder direct responsibility for the more than 350,000 student-athletes in the PIAA. Also, principals would have to balance pressing practical concerns of school boards, communities, and the state against the potential benefits of getting students back to play.
To offset that pressure, in late August, PIAA’s Executive Director went before the Pennsylvania state legislature and sought COVID-19 liability-protection laws for the schools. While PIAA already offered members coverage for various claims under its insurance policy, its policy excludes viruses and communicable diseases. The state declined to intervene, and then it added event attendance limitations into the mix. Additionally, Governor Wolf reiterated his concern about youth sports returning to competition. After all, many schools have continued to forestall classroom returns. “This idea that we can have it the way we want it and not need to make concessions to the reality of coronavirus (is not safe).”
Reallocating the Risk
PIAA responded with two policy decisions. First, it created a manual for member schools and officials. The manual provided virus-mitigation guidelines and assigned risk levels to fall sports. Second, PIAA revised the health care physical form that athletes must complete each year to include a COVID-19 waiver. This revision was added despite earlier statements that PIAA would not require one. The finalized waiver filled an entire page. The waiver also came more than a month after athletes had already returned to play. Its language mirrored the emphasis of the manual. In addition, the waiver placed the risk associated with playing amidst a pandemic entirely on the athletes and their families.
Public schools could potentially enjoy some protection from liability because of their governmental status. However, nearly twenty percent of PIAA member schools operate as private schools or charter schools. Meanwhile, issues involving the disparate impact of the decision to play or not could impact the league long-term.
Even for public schools, questions remain about the reasonableness of permitting facility and transportation use for sports during the pandemic. Once it was clear sports would resume at schools across the state this fall, Governor Wolf sought to limit spectators at various cultural events by executive order. After the order’s attendance limits were successfully challenged at the district court level for constitutionality, some schools allowed larger crowds at sporting events. In early October, Governor Wolf revised the attendance limits for sporting events, allowing schools to take venue size into account.
So far, stories of COVID-19 positive PIAA athletes have been limited. An unanswered question is how courts will react to lawsuits arising from virus exposure connected to school-sponsored activities. But there are also other concerns and potential claims. For example, a recent motion for injunctive relief against PIAA involved golfers who lost their opportunity to play in a September 2020 tournament due to PIAA-imposed safety guidelines. The court deferred to the PIAA, finding it had acted reasonably given the exceptional circumstances created by COVID-19. Decisions by schools not to play may already be disrupting access to life-changing scholarships. There is the potential for economic impact to students whose schools opted out of play and lost recruiting opportunities. That point has not been lost on athletes outside PIAA who would have liked the autonomy enjoyed by their PIAA peers. In the end, only time will tell who emerged as winners.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
 See Hannah Kanik, Pa. Shools Respond to Gov. Wolf’s Stance on School Sports, PennLive (Aug. 6, 2020), https://www.pennlive.com/news/2020/08/pa-schools-respond-to-gov-wolfs-stance-on-school-sports-im-hoping-theres-more-clarity.html+&cd=2&hl=en&ct=clnk&gl=us (noting Governor’s announcement created difficulty for principals since delaying sports until January 2021 was not mandated); see also Guidance for All Sports Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees, Athletes and the Public, Commonwealth of Pa. (Oct 6, 2020) [hereinafter Guidance for All Sports], https://www.governor.pa.gov/covid-19/sports-guidance/ (showing continued recommendation by Pennsylvania to delay youth sports until January 1, 2021).
 See Johnny Mangano, PIAA Allows Pa. Schools to Begin Fall Sports on Monday, 69 News & Assoc. Press (Aug. 21, 2020), https://www.wfmz.com/news/area/pennsylvania/piaa-allows-pa-schools-to-begin-fall-sports-on-monday/article_7326fe0a-e3d8-11ea-b3b2-83f2db25aa0b.html (announcing PIAA response to Governor Wolf and adapting fall season schedule); see also A Principals’ Organization, Principle-Based, PIAA, https://www.piaa.org/about/story.aspx (last visited Oct. 13, 2020) (explaining “function of PIAA is to develop and enforce rules regulating interscholastic athletic competition, which are authorized or adopted by the member schools”).
 See Pat Ralph, Fall High School Sports Season Cleared to Begin on Monday in Pennsylvania Amid COVID-19 Pandemic, PhillyVoice (Aug. 23, 2020), https://www.post-gazette.com/sports/highschool/2020/08/21/piaa-fall-sports-approval-gov-tom-wolf-recommendation/stories/202008210121 (establishing PIAA expected member schools to develop school-specific safety plans in face of Governor Wolf’s public recommendation that all Pennsylvania schools suspend sports until January 2021).
 See Return to Competition: Individual Sport Considerations, PIAA, http://www.piaa.org/assets/web/documents/Return_to_Competition.pdf (last visited Oct. 12, 2020) [hereinafter Return to Competition] (“While we all remained concerned about the dangers of COVID-19, PIAA believes it is essential to the physical and mental well-being of high school students across the Commonwealth that efforts be made to return to physical activity and athletic competition where that can occur in a reason.”).
 See Mitch Rupert, Liability with Fall Sports an Issue for PIAA, Express (Aug. 20, 2020), https://www.lockhaven.com/sports/local-sports/2020/08/liability-with-fall-sports-an-issue-for-piaa/ (reporting executive director’s efforts to have state legislature provide protection from liability for schools if student-athletes contract COVID-19 and discussing liability issues).
 See Matt Allibone, As the PIAA Heads Toward a Decision on Fall Sports, Here's How We Got Here and What's Next, York Daily Rec. (Aug. 18, 2020), https://www.ydr.com/story/sports/high-school/2020/08/18/piaa-moves-toward-decision-heres-how-we-got-here-and-whats-next/3379088001/ (referencing PIAA’s concern for its “350,000 student-athletes and their families”).
 See A Principals’ Organization, Principle-Based, supra note 2 (“Principal of each member school is responsible to PIAA in all matters pertaining to the interscholastic athletic relations of the Principal’s school.”); see also Mangano, supra note 2 (emphasizing local control and decisions as responsive to local needs by highlighting that PIAA encouraged its more than 1,400 member schools to follow PIAA’s COVID-19 guidelines and health plans, indicating schools should be responsive to virus prevalence in each region; see also Keith Grollier, PIAA Athletes Can’t Celebrate Yet, As School Boards Get to Decide If Play Resumes, Morning Call (Aug. 23, 2020) https://www.mcall.com/sports/varsity/mc-spt-piaa-fall-spors-announcement-follow-20200823-kn6gxne555hqdh3ux3mpgp7hyu-story.html (highlighting confusion and tension generated by decision being pushed down to local school level); see also Matt Allibone, Pennsylvania High School Decides to Suspend Fall Athletics Due to Coronavirus Pandemic, York Daily Rec. (Aug. 18, 2020), https://www.ydr.com/story/sports/high-school/2020/07/30/norristown-area-school-district-suspends-sports-due-coronavirus/5550033002/ (noting ten school districts in PIAA had to suspend summer training due to positive COVID-19 athletes as context for one district’s decision to announce canceling fall season).
 See Allibone, supra note 6 (noting “PPIAA, superintendents, athletic directors and coaches” testified to PIAA Athletic Oversight Committee regarding plans to facilitate return-to-play).
 See Tom Reisenweber, Insurance Could Become Hurdle If PIAA OKs Fall Seasons, Erie Times News (Aug. 19, 2020), https://www.ydr.com/story/sports/2020/08/19/piaa-sports-insurance-could-become-hurdle-fall-high-school-sports/5608615002/ (describing insurance arrangement between PIAA and member schools).
 See Mike White, PIAA Gives the Green Light for Sports, But Schools Must Make the Call, Pittsburgh Post Gazette (Aug. 21, 2020), https://www.post-gazette.com/sports/highschool/2020/08/21/piaa-fall-sports-approval-gov-tom-wolf-recommendation/stories/202008210121 (“While the administration expressed broad concern with the PIAA’s plans, including its request for liability protections, we’ve made it clear to them since July that this decision should be made by the PIAA in concert with local school districts. The governor has a deep appreciation for the importance of athletics and the role sports play in the lives of student-athletes. The governor’s recommendation is grounded in public health evidence and a common-sense reaction to league after league canceling or postponing their fall seasons, outbreaks across the country, growing evidence of higher transmission in children, protecting higher-risk adults and the fundamentally important need to get kids back into learning in classrooms.”) (quoting Governor Tom Wolf); see also Third Circuit Court Of Appeals – Stay Order On Gatherings, PIAA (Oct. 1, 2020), http://www.piaa.org/assets/web/documents/Press%20Release%20October%201,%202020.pdf
(reporting Governor Wolf’s intention to keep limits at events to 25 indoors and 250 outdoors).
 See Guidance for All Sports, supra note 1 (noting safety concern and that under PIAA and Pennsylvania Independent Schools Athletic Association (PISAA) pre-K to 12 school sports must follow “the PDE Preliminary Guidance for Phased Reopening of Pre-K to 12 Schools and the CDC Considerations for Youth Sports”).
 See Allibone, supra note 6 (expressing Governor Wolf’s concern about return to play and showing timeline of PIAA decision-making).
 See Mike Drago, Pa. Lt. Gov. John Fetterman Expresses Concern About Safe Return of Fall Sports, Reading Eagle (Aug. 20, 2020), https://www.readingeagle.com/sports/high-school/pa-lt-gov-john-fetterman-expresses-concern-about-safe-return-of-fall-sports/article_ 4fad67b8-e313-11ea-824fd b4dfcb77680.html (expressing concern of politics preventing common sense response to COVID-19).
 See Return to Competition, supra note 4, at 2 (“PIAA Sports Medicine Advisory Committee believes that STRICT ADHERENCE by schools and teams to their school-adopted plans and the Governor’s School Sports Guidance should provide a reasonably safe environment for student-athletes to participate in interscholastic athletics as currently scheduled.”).
 See id. at 2-24 (assigning levels of risk for spreading COVID-19 to fall sports). The PIAA lists cross country and golf as lower risk sports, field hockey, soccer, tennis, and volleyball as moderate risk sports, and football as a higher risk sport. See id. at 11-25 (noting no risk classification for water polo).
 PIAA Comprehensive Initial Preparticipation Physical Evaluation (“CIPPE”), PIAA, https://www.piaa.org/assets/web/documents/PIAA_CIPPE_FORMS_SECTION(S)_1_-_10(1).pdf (last visited Oct. 22, 2020) [hereinafter PIAA CIPPE] (showing level of historical information healthcare providers must verify before an athlete can play sports in PIAA); see also Summary of PIAA Board of Directors’ Actions from the Meeting of Wednesday, October 7, 2020, PIAA (Oct. 7, 2020), http://www.piaa.org/assets/web/documents/Summary_of_Board_of_Directors_Meeting_-_Oct._7,_2020.pdf (recording addition of “COVID-19 waiver/release form” for athletes’ Comprehensive Initial Pre-Participation Physical Examination (CIPPE)).
 Tom Reisenweber, Insurance Could Become Hurdle If PIAA OKs Fall Seasons, Erie Times News (Aug. 19, 2020), https://www.ydr.com/story/sports/2020/08/19/piaa-sports-insurance-could-become-hurdle-fall-high-school-sports/5608615002/ (“We talked about maybe putting COVID-19 on the CIPPE …. It wouldn’t be on there as a liability waiver but just understanding the effects like we have for cardiac arrests and concussions.”) (quoting Melissa Mertz, PIAA’s Associate Executive Director).
 See PIAA CIPPE, supra note 16, at 7 (showing eight-paragraph waiver).
 See Steve Novack, Pa. Coronavirus Updates: 693 New Cases; 20 More Deaths; 9 Counties with ‘Concerning’ Case Trends; PIAA Says Fall Sports Can begin Monday, Lehigh Valley Live (Aug. 21, 2020), https://www.lehighvalleylive.com/coronavirus/2020/08/pa-coronavirus-updates-693-new-cases-20-more-deaths-9-counties-with-concerning-case-trends-awaiting-piaa-fall-sports-decision-pa-covid-19-county-case-map-082120.html (providing updated PIAA schedule in context of COVID-19 cases in Pennsylvania).
 See Reisenweber, supra note 17 and accompanying text (showing consistency of PIAA position regarding liability).
 See PIAA CIPPE, supra note 16, at 10 (“Notwithstanding the risks associated with COVID-19, we acknowledge that we are voluntarily allowing student to participate in interscholastic athletics with knowledge of the danger involved. We hereby agree to accept and assume all risks of personal injury, illness, disability and/or death related to covid-19, arising from such participation, whether caused by the negligence of PIAA or otherwise.”).
 See Public Schools Need Temporary Grant of Immunity from COVID-19 Lawsuits, at 2, PSBA, https://www.psba.org/wp-content/uploads/2020/09/Immunity_covid.pdf (last visited Oct. 22, 2020) (explaining Pennsylvania “public schools are immune from civil liability under the Political Subdivision Tort Claims Act (PSTCA)”).
 See A Principals’ Organization, Principle-Based, supra note 2 (providing breakdown of 1,431 member schools). Of PIAA’s membership, “583 are [public] senior high schools and 594 are [public] junior high/middle schools . . . 40 are Charter senior high Schools, 144 are Private senior high Schools, 17 are Charter junior high/middle schools, and 53 are Private junior high/middle Schools.” Id. (referring to 1,431 PIAA membership schools).
 See Mike White, One Emphatic ‘No’ Vote on New Bill for Separate High School Tournaments, Pittsburgh Post-Gazette (June 17, 2019), https://www.post-gazette.com/sports/high-school-football/2019/06/27/PIAA-WPIAL-house-bill-1600-separate-tournaments-Catholic-private-public-recruiting-Aaron-Bernstine/stories/201906260113#:~:text=Under%20the%20bill%2C%20the%20PIAA,
%20only%2043%20Catholic%2Fprivate (showing existing frustrations between public schools and private schools in PIAA pertaining to restrictions on athletes depending on their public school catchment areas).
 See PSBA, supra note 22, at 2 (“[A]cts of a local agency which render a property unsafe for ‘the activities for which it is regularly used, for which it is in-tended to be used, or for which it may reasonably be foreseen to be used, are acts which make the local agency amenable to suit.’”) (quoting Brewington v. Philadelphia, 199 A.3d 348 (Pa. 2018)). The Pennsylvania Supreme Court also found liability related to transportation by holding operation of motor vehicle could include decisions made related to its use. See id. (citing Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018)).
 See Pa. Exec. Order 20200715-TWW, Order of the Gov. of the Commonwealth of Pa. Directing Targeted Mitigation Measures, https://www.governor.pa.gov/wp-content/uploads/2020/07/20200715-TWW-targeted-mitigation-order.pdf (July 15, 2020) (setting attendance limits of 25 attendees for indoor cultural events and 250 attendees for outdoor events). The order was later challenged for arbitrary guidelines. See Cty. of Butler v. Wolf, 2:20-CV-677, 2020 WL 5510690, at *15 (W.D. Pa. Sept. 14, 2020) (noting businesses could have more than 250 people inside for gatherings but educational entities could not); see also Lindsay Ward, Local Schools Allowing More Sports Fans After Court Ruling, KDKA2 CBS Pittsburgh (September 23, 2020), https://pittsburgh.cbslocal.com/2020/09/23/high-school-sports-more-fans-gov-tom-wolf-unconstitutional/ (noting Governor Wolf sought to limit attendance at sporting events to 25 indoors and 250 outdoors).
 See Mike White, Pa. Department of Education ‘Encourages’ Enforcement of Crowd Limits, Pittsburgh Post-Gazette (September 18, 2020), https://www.post-gazette.com/sports/high-school-football/2020/09/18/Pa-Department-of-Education-encourages-enforcement-of-crowd-limits/stories/202009180145 (indicating some schools decided to ignore state attendance guidelines once court held state-mandated caps on attendance limits at sporting events was arbitrary and unconstitutional). Subsequently, the appeals court held that the order should stay in effect while the appeals process continued. See Greg Pickel, Pa. Gathering Limits Are Back for Now, PennLive (Oct. 1, 2020), https://www.pennlive.com/coronavirus/2020/10/pa-gathering-limits-are-back-for-now-what-should-schools-do-for-friday-night-football-gov-wolf-stay-tuned.html (noting limits on public gatherings remain in effect pending court review).
 See Guidance for All Sports, supra note 1 (referring readers to updated order “Amendment to the Order of The Secretary of the Pennsylvania Department of Health Directing Mitigation Measures,” capping attendance at venues based on calculation taking into account factors such as size and fire code capacity).
 See e.g., Peter Blanchard, Patch, 2nd Central Bucks East Student Athlete Tests Positive For COVID, Patch (Sept. 25, 2020), https://patch.com/pennsylvania/doylestown/2nd-central-bucks-east-student-athlete-tests-positive-covid (reporting second case several weeks into fall sports season).
 See PSBA, supra note 22, at 3 (noting contact tracing will make it easier to claim virus exposure occurred at school-sponsored activities).
 See A.M. v. Pa. Interscholastic Athletic Ass’n, No. 1:20-CV-290-SPB, 2020 WL 5877617 at *1 (W.D. Pa. Oct. 1, 2020) (emphasizing court’s deference to PIAA and its decision to reduce number of spots on golf tournament roster for safety reasons, even though decision led to lost opportunity to play for several previously eligible students).
 See id. at *5 (indicating courts will look favorably on defendants who acted to safeguard students).
 See Shamar Walters & Caitlin Fichtel, As COVID-19 Upends Fall Sports, Student-Athletes Face Uncertain Futures, NBC News (Aug. 9, 2020), https://www.nbcnews.com/news/us-news/covid-19-upends-fall-sports-student-athletes-face-uncertain-futures-n1235943 (describing role of athletics in high schools as gateway to opportunity). “More than 180,000 students use sports scholarships to help finance their educations every year, according to the NCAA, the organization that oversees sports programs for more than 1,000 colleges and universities.” Id. (stressing significance of recruitment).
 See, e.g., Chris Hays, High School Football Recruits, Colleges Adapt To COVID-19 Restrictions, Orlando Sentinel (Sept. 9, 2020), https://www.orlandosentinel.com/sports/florida-recruiting/os-sp-hs-prev-recruiting-insider-09-06-20200910-5v7ztc6rzbb27lvexkmkx3iisa-story.html (highlighting specific impact on 2021 cohort).
 See Andrew Wagaman, City Schools At Disadvantage As PIAA Moves Ahead With Fall Sports, Leaving Many Kids Behind, Morning Call (Aug. 28, 2020), https://www.mcall.com/news/local/allentown/mc-nws-allentown-fall-sports-piaa-equity-20200828-ibwbeeklmbbhzi6dodduxllu2i-story.html (capturing disparate impact of leaving decision to local schools). “While the Allentown School Board voted to allow students to participate in [PIAA] competition this fall, the Philadelphia, Reading and Harrisburg districts are among those that have chosen not to participate because of the pandemic’s disproportionately hard impact on their communities. Seventeen Catholic schools in Philadelphia made the same call.” Id. (presenting varying approaches to fall 2020 season).