Basketball

What legal issues could schools face if they choose to play basketball this winter?

Insurance coverage, waivers and costs all factor into the decision, lawyer says

Aurora Christian sophomore Drew Meyers is fouled by Indian Creek's Cooper Larsen as he goes to the basket  during their IHSA Class 1A DeKalb (NIU) Supersectional last season in the Convocation Center at Northern Illinois University.
Aurora Christian sophomore Drew Meyers is fouled by Indian Creek's Cooper Larsen as he goes to the basket during their IHSA Class 1A DeKalb (NIU) Supersectional last season in the Convocation Center at Northern Illinois University.

Gov. JB Pritzker said basketball will have to wait until the spring. The IHSA said it's planning to let member schools start Nov. 16 as planned and posted guidelines for competition Thursday afternoon.

School districts are caught in the middle, and as Pritzker noted during news conferences Wednesday and Thursday, there could be legal issues at play.

Attorney Terry Ekl, a founding member of Ekl, Williams & Provenzale in Lisle, agreed that districts that move forward with a basketball season could face legal issues.

"The problem you are going to have is, even if you have parents sign waivers, if a kid gets [COVID-19] and then goes out and gives it to someone else, you have a potential of a lawsuit against the school district," Ekl said. "The basis of the lawsuit is they ignored the Illinois Department of Public Health and went ahead and allowed these kids to play."

Even with the chain of the virus hard to prove, it still could prove costly for a district to fight.

"There's a proof issue involved here, but that doesn't mean the school district is not going to get sued and have to engage in costly defensive litigation," Ekl said. "Sometimes the cost of litigation exceeds the cost proven to be a damage. You win the case, and you still have to pay the cost of defense, which could be tens of thousands of dollars."

And that's where insurance can come into play, as well.

"[Carriers] may very well say to the school district, 'If the department of public health is saying they are recommending you should not play basketball, and you go ahead and do it, we would negate your insurance coverage,'" Ekl said. "'We're telling you right now you should not engage in athletic activities that are in conflict with the Illinois Department of Public Health.'"

Ekl said a group of parents approached him last month about suing the IHSA. He said he researched the matter and ended up turning down the case, which was dismissed by a DuPage County judge Oct. 1.

And he said the issue then is similar to the issue now with schools going forward with potentially playing basketball.

"Here's the problem. If in fact schools go forward and say, 'The IHSA said we can play, we're going to go ahead and play," Ekl said. "You still have hanging out here recommendations from the Illinois Department of Public Health that are basically saying, no you should not engage in those sports."

He said what it boils down to is how much risk school districts are willing to absorb, even though he personally believes in letting athletes play.

"Frankly, my own personal opinion is, let the kids play," said Ekl, who also is a volunteer football coach at Wheaton Warrenville South. "I think the harm that's being done not being in school or not being in sports exceeds the likelihood they are going to contract COVID and have some bad consequence as a result.

"But having said that, it gets down to the bureaucracy of a school district and lawyers and insurance companies," he said. "Whether they want to absorb the risk of letting the kids play. And that's a decision that could have different conclusions from one school district to the next, which I think would make it even more difficult to have a meaningful season for the kids."

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