School athletics during COVID-19 is a hot-button issue. Some schools have cancelled fall sports, while those that are offering fall sports are pondering potential implications. For assistant principals involved in school athletics, whether as coaches or coach supervisors, becoming and remaining familiar with applicable Executive Orders and agency guidance is essential to ensuring your school’s athletic events are legally compliant and guided by the most current safety standards. While governmental immunity and liability waivers may offer some protection from potential liability, your conduct will be measured against an unsettled and evolving legal landscape.

The potential liability of assistant principals involved in school sports for COVID-related illnesses or injuries will turn, in part, upon the perceived reasonableness or recklessness of their conduct. That perception will likely depend upon compliance with governmental mandates and guidance.

Executive Orders and agency guidance are issued or updated on almost a weekly basis. You should regularly review and confer with your Athletic Director about new Executive Orders and agency guidance concerning athletics. Regular consultation with your local health department is also required to obtain authoritative guidance regarding circumstances unique to your school.   

Documenting your efforts to comply with evolving mandates and recommendations, while enforcing mitigation measures, will reduce the risk of COVID-related illnesses or injuries in your athletic programs and corresponding potential legal exposure. This article, while not exhaustive, highlights some key compliance challenges.

Contact and Non-Contact Sports:  Executive Orders 2020-142, 2020-176, and 2020-183 and Agency Guidance

EO 2020-142 suspends school sports for schools in Phases 1-3 of the MI Safe Start Plan. EO 2020-176 and its replacement EO 2020-183, which is effective October 9, 2020, permit school sports for schools in Phases 4-6, subject to compliance with precautions listed in those EOs. 

Significantly, EO 2020-176 and EO 2020-183 require “sports organizers” (defined as an institution or association that sets and enforces rules to ensure the physical health and safety of all participants), to comply with Michigan Department of Health and Human Services (DHHS) guidance “regarding whether and how a sport can be played safely.” 

Critically, DHHS has determined that currently offering contact sports presents a safety risk. On September 3, 2020, DHHS issued guidance stating that contact sports should be avoided at this time and that DHHS will continue to review transmission data to determine whether and when contact sports may resume safely in the future. 

A challenge for schools in Phase 4 is that EO 2020-142 and the corresponding MI Safe Schools Roadmap, both of which remain in effect, require Phase 4 schools to comply with guidance issued by the Michigan High School Athletic Association (MHSAA). MHSAA issued guidance on September 3, 2020 that broadly interpreted EO 2020-176 to remove all restrictions on school sports, with no reference to DHHS guidance on contact sports. MHSAA subsequently issued guidance on September 10, 2020 that likewise did not reference the DHHS guidance on contact sports. 

Given conflicting guidance from DHHS and MHSAA, assistant principals should consult with their Athletic Directors, other district administrators, the local health department, and legal counsel to determine whether or how to offer contact or non-contact sports during COVID-19. 

Assemblage Limits:  Executive Order 2020-176, Executive Order 2020-183, and MHSAA Guidance

EO 2020-176 and EO 2020-183 divide the State into 8 “Regions.” EO 2020-176 Section 7 says that organizers of indoor organized sports (all Regions) may allow a live audience consisting only of athlete guests, with each athlete designating up to two guests. Organizers of outdoor organized sports (all Regions) must limit spectators to either not more than two guests per athlete or a total gathering of up to 100 people (including all participants such as athletes, coaches, and staff). 

Effective October 9, 2020, EO 2020-183 says that organizers of organized sports may allow a live audience if they comply with any one of the following

  • For indoor and outdoor sports (all Regions): the audience consists only of athlete guests, with each athlete designating up to two guests.
  • For indoor sports: 
    • Total event attendance (i.e., including audience, athletes, and coaches) does not exceed 10 people (all Regions), or
    • Total attendance is between 10 and 500 people and (1) the event is in a non-residential venue (e.g., school-owned gym or field), (2) if the venue has fixed seating, attendance does not exceed 20% seating capacity for Regions 1-5 and 7 or 25% seating capacity in Regions 6 and 8, (3) if the venue does not have fixed seating, attendance does not exceed 20 people per 1,000 square feet of venue space for Regions 1-5 or 7, or 25 people per 1,000 square feet of venue space in Regions 6 and 8, and (4) attendees wear masks consistent with EO 2020-153. 
  • For outdoor sports (all Regions): 
    • Total attendance (i.e., including audience, athletes, and coaches) does not exceed 100 people, or
    • Total attendance is between 100 and 1,000 and (1) the event is in a non-residential venue, (2) if the venue has fixed seating, attendance does not exceed 30% seating capacity, and (3) if the venue does not have fixed seating, attendance does not exceed 30 people per 1,000 square feet of event space. 

Masks:  Executive Orders 2020-183, 2020-180, and 2020-153 and MHSAA Guidance 

EO 2020-180 and its successor 2020-183 (effective October 9, 2020) require that “athletes training for, practicing for, or competing in an organized sport must wear a facial covering (except when swimming) or consistently maintain six feet of social distance (except for occasional and fleeting moments).” The EOs apply statewide during Phases 4-6, and they apply to indoor and outdoor sports. The EOs do not include an exception for (1) athletes who “cannot medically tolerate a face covering” or (2) athletes “exercising when wearing a face mask would interfere with the activity.” Assistant principals should, however, refer mask questions involving students with disabilities to their Special Education Director to ensure compliance with the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973.

EO 2020-153’s general mask requirement applies to coaches, which says that any person who leaves their residence must wear a mask in an indoor public space or when outdoors and unable to consistently maintain a distance of at least 6 feet from people who are not members of their household. Some exceptions in that EO may permit a coach to remove a mask, such as the coach being unable to medically tolerate a mask. Mask usage by coaches is also governed by a school’s Preparedness Plan. MHSAA issued guidance saying masks “shall be worn by coaches” consistent with current EOs. 

MHSAA also issued guidance requiring officials/referees to wear face coverings at all times other than when on the field of play.  MHSAA appears to be relying on a face covering exception in EO 2020-153 for individuals who are “actively engaged in a public safety role [and] wearing a mask would seriously interfere with the performance of public safety responsibilities.”   EO 2020-153 nonetheless “strongly encourages” even those actively engaged in a public safety role to wear a mask. MHSAA states in its September 10, 2020 guidance that it is the responsibility of school officials to enforce mask requirements.  

Governmental Immunity

Governmental immunity protects school officials, including assistant principals, from tort liability (that is, from acts or omissions that result in injury or harm to another). Assistant principals have qualified governmental immunity under the Governmental Tort Liability Act (GTLA) if: (1) the school is engaged in a governmental function; (2) the assistant principal acted within the course of their employment or service and scope of authority; and (3) the assistant principal’s conduct was not grossly negligent. 

Michigan courts have uniformly held that when a school district engages in an activity that is expressly or impliedly authorized by the Revised School Code, the district is engaged in the exercise of a governmental function for purposes of governmental immunity. Because the Revised School Code and State School Aid Act expressly or impliedly authorize school-sponsored athletic events and extracurricular activities, assistant principals should be immune from liability for resulting injuries or illnesses unless they were grossly negligent.

The GTLA defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” In evaluating risks associated with organized sports at this time, assistant principals involved in school sports find themselves between a proverbial rock and a hard place – seeking to comply with evolving and sometimes seemingly contradictory guidance. Regular consultation with your colleagues and your local health department is imperative.

Insurance, Liability Waivers, and Medical Clearance

Assistant principals should consult with the school’s insurance carrier about risk management protocols and liability protections afforded to the school and its employees. You also may consider requiring students and parents to sign an assumption of the risk or liability waiver/indemnification form before permitting students to participate in organized sports (contact or non-contact). Although Michigan courts have ruled that a parent lacks the authority to prospectively waive, release, or compromise any claims of a minor child, such a form may help defend against a claim that school officials were grossly negligent. More importantly, requiring an assumption of risk or liability waiver form clearly outlines participation risks to parents and students, and documents that they accept those risks as a condition of participation.  

Assistant principals should also consider supplementing pre-participation physicals with the use of COVID-19 Supplemental Questionnaires and written medical clearance for student-athletes as recommend in joint guidance issued by the National Federation of State High School Associations (NFHS) and the American Medical Society for Sports Medicine (AMSSM). EO 2020-142 and the Roadmap require schools in Phase 4 to comply with NFHS Guidance. 

Navigating school sports during these turbulent times is challenging and sometimes frustrating. If you find the requirements and recommendations in Executive Orders or guidance documents vague or contradictory, consulting with your local health department and legal counsel is advisable. 


Written by Thrun Law Firm, P.C.