Can college sports teams refuse to release COVID-19 testing results?
Before its first game of the 2020 season, Oklahoma head coach Lincoln Riley announced the team would no longer make public the number of coronavirus positive cases on the team.[1] The Sooners, which test players three times a week, felt releasing this information would lead to a “competitive disadvantage” for the presumed Big 12 Conference contender and national championship hopeful. Oklahoma is not alone; nearly half of the 65 “Power 5” schools that make up major college football have declined to release information on positive tests of their athletes.[2] The Privacy Guy’s eyebrows were raised by the schools’ justification that the information is protected by federal privacy laws.
This argument is continuation of how college administrations have dealt with coronavirus testing among their general student bodies. The most likely justification for withholding coronavirus case information is under FERPA, or the Family Educational Rights and Privacy Act. FERPA has been invoked by administrators at UNC, Notre Dame, and others to deny the public access to regular case counts. However, in some cases (UNC) the same administrators have turned around and released case counts after receiving public pushback. How can FERPA serve as a justification for privacy but be so easily discarded at the same time?
FERPA is an educational privacy statute that gives administrators considerable latitude in interpreting what information should be protected from the public. The strange thing about administrators invoking FERPA is that the law is constructed as an access statute, written to ensure students and parents have access to their educational records. However, the law distinguishes between information that can be shared without the student’s consent, and which requires consent. The critical class of information the law protects is personally identifiable information (PII). PII includes a student’s name, address, identifiers (like social security number), and most interestingly, “Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”[3] FERPA distinctly prohibits educational institutions from sharing PII without the student’s consent.
Essentially, schools are arguing that releasing coronavirus information is equivalent to revealing PII or identifying the students who have contracted the disease. Did that make you say, “Huh?” Me too. While announcing “Jimmy Jeans of Delta Sig has coronavirus” is clearly a violation, most of us would not say releasing raw coronavirus statistics comes even close to revealing PII. This is the logic that allows UNC to tell its daily newspaper one week that it will not disclose coronavirus statistics to comply with FERPA and turn around the next week and supply the information it was supposedly protecting.[4]
Returning to college football players, the logic about PII makes both more sense and less sense. If a school is worried about revealing the identities of corona-positive players by refusing to identify which position group was sitting out practice due to COVID, that makes some sense. There are only so many offensive linemen, and it’s easy enough to reveal the health status of particular students by making the pronouncement that the offensive line has to sit out practice because of COVID. However, in normal times we already know the health status of student athletes. In an ESPN article on this subject Frank LoMonte, director of the Brechner Center for Freedom of Information, notes, “Colleges have freely been giving out medical information about their athletes for a very long time and it presents no privacy issues” because they sign medical waivers allowing the school to release information about injuries.[5] Releasing COVID case counts at a university infringes PII and FERPA no more than releasing case counts on a state or county basis does.
Perhaps this is all best explained by politics. Coronavirus has become a highly political issue in the U.S., with many conservative politicians downplaying or denying the harmful effects of the virus, and college football has a conservative skew in its fan base.[6] Coaches and administrators may be concerned about protecting players from negative responses from fan bases that have chosen to ignore the medical community’s consensus on the dangers of the virus. On the other side, coaches would prefer to keep their teams out of the media spotlight, especially with news organizations quick to report on outbreaks related popular sports. Any outbreaks in the college ranks are complicated by the imbalance of power in college sports, by which university athletic departments make millions of dollars off of unpaid “amateur” labor. So, Lincoln Riley’s justification of “competitive disadvantage” smells, considering the players will sit out whether or not the reason is reported to the media. The “disadvantage” of reporting coronavirus numbers is in Oklahoma’s battle with the media, limiting the university’s ability to spin their success containing a pandemic while also conducting a profitable sports enterprise.
[1] https://www.espn.com/college-football/story/_/id/29838795/lincoln-riley-says-oklahoma-share-covid-19-test-results-season-cites-competitive-disadvantage
[2] https://www.espn.com/college-sports/story/_/id/29745712/nearly-half-power-5-disclose-covid-19-test-data
[3] 34 CFR § 99.3
[4] https://www.wsj.com/articles/colleges-weigh-transparency-versus-privacy-when-it-comes-to-covid-19-data-11598347801
[5] https://www.espn.com/college-sports/story/_/id/29745712/nearly-half-power-5-disclose-covid-19-test-data
[6] http://www.thepostgame.com/blog/dish/201303/how-politics-correlate-sports-interests
Dumb Privacy Guy 