By Brian G. Remondino, Esq. and Joseph E. Samuel, Jr., Esq., of Montgomery McCracken Walker & Rhoads LLP
In the Spring 2020 edition of Sports Medicine and the Law, we discussed the potential implications of resuming athletic activity in the wake of COVID-19. At that time, all major American sports leagues and most sports leagues around the world had shut down to prevent the spread of the virus. While the world deals with the dramatically increased spread of the COVID-19 pandemic this fall and winter, athletic institutions must remain vigilant and stay informed about legal issues that may arise and new formal guidance that applies now that competition, in many instances, has resumed. This article serves as an update to our earlier discussion and will analyze new issues that have arisen in the latter half of 2020.
Return-to-Play Update
Since the release of our Spring 2020 article, all five major American sports leagues (the NFL, NBA, MLB, NHL, and MLS) returned with a modified version of their respective seasons. The NBA, NHL, and MLS (at least initially) competed in a “bubble” where teams were sequestered to play in specific centralized locations. The NFL and MLB allowed teams to host games at their home stadiums, although fan attendance was limited by state and local social distancing guidelines, which, in many cases, resulted in no fan attendance at all.
The bubble models were widely praised for their effectiveness—the NBA, for example, was able to complete its season and playoffs without a single reported positive test of COVID-19. Although the MLB was able to finish its season, and the NFL season continues as this article goes to print, both leagues were and continue to be plagued with game postponements and other difficulties, as players and staff contracted and spread the virus. Of particular note, the NFL’s Steelers-Ravens game scheduled for Thanksgiving night was pushed to the following Wednesday afternoon due to a virus outbreak, marking only the second Wednesday NFL game since 1950, and, in the same week, the Denver Broncos became the first team to start a non-quarterback at the position since 1965 because all of the quarterbacks on their roster were disqualified from play due to the league’s COVID-19 protocols.
Some collegiate sports have resumed as well, including Division I football and basketball. Not all activity has resumed, however, as the NCAA’s Divisions II and III canceled all of their fall 2020 championships. Other Division I sports have resumed or been canceled on a school-by-school basis. Like the MLB and NFL, collegiate sports have been plagued by postponements and cancellations, and several teams across the country have experienced major outbreaks. At least 17 student-athletes and 13 staff members for the Wisconsin Badgers, for example, tested positive for the virus in October and November, causing the team to miss several games in an already shortened Big 10 season, and some of college football’s biggest names—including Clemson’s Trevor Lawrence, the presumptive number one pick in next year’s NFL draft, and Alabama’s Coach Nick Saban—have missed games after testing positive.
NCAA Guidelines
In order to support teams and schools that have resumed play, the NCAA has issued (and routinely updated) guidance documents that must be followed. While these documents were initially released as nonmandatory guidance that contained permissive language such as “may” and “might,” the NCAA has since clarified that they are “considered requirements for institutions that elect to continue with any competition occurring in the fall.”
The guidance notes that “[a]symptomatic spread of COVID-19 is of significant concern among the college sport environment because, like the broader student body, it is largely composed of younger adults (18-29 years of age). Even if these individuals remain asymptomatic or are minimally symptomatic after being infected with [the virus], they are still capable of spreading the virus that causes COVID-19.” The guidance goes on to describe in detail the applicable CDC guidelines. Importantly for athletic institutions, the guidance emphasizes outdoor practice where possible. “When outdoor training is not feasible, or for indoor sports, it is important to mitigate risk with masking whenever feasible, including during training.”
The NCAA also recommends working in “functional units” during practice or other team activities. A “functional unit” is described as two to 10 or more individuals, all members of the same team, who consistently work out and participate in activities together. “This means that if an individual from one of those units does become infected, the entire team may not be impacted, and contact tracing may be more manageable than it would be otherwise in the event of an infection.” The guidance further suggests the use of electronic whistles or whistle covers during practice, “as a strategy to avoid the deep breath and force burst of droplet-filled air that result from the use of a traditional whistle.”
Interestingly, the NCAA guidance ranks each sport based on its “current transmission risk,” with each sport listed as either Low, Intermediate, or High. Sports labeled as Low-risk include golf, outdoor track, and tennis, while the Intermediate category includes baseball, field hockey, and indoor track. The High-risk category includes both football and basketball, yet, as discussed above, play has resumed for both of these sports, at least in Division I.
Collegiate conferences and individual schools have also developed their own COVID-19 protocols of varying degrees of strictness, which include testing, cardiac screening, return to play, quarantine, and other safety guidelines.
Legal Developments Resulting from Return-to-Play
Our Spring 2020 article discussed the potential legal implications of resuming play in the wake of COVID-19, including the possibility of tort liability stemming from the spread of an infectious disease. It is true that cases asserting negligence based on the contraction of COVID-19 have been filed all across the United States, although they have tended to arise in the context of nursing homes, prisons, or private employers. The authors of this article have yet to come across a case in which an athlete or employee has sued his or her team, school, or other institution based on a failure to properly contain the virus as athletic activity resumed.
This does not mean that litigation stemming from COVID-19 has not arisen between student-athletes and their schools. To the contrary, in one notable case, a group of Illinois high school student-athletes and their parents actually sued their local athletic association to compel the return of fall sports, arguing the decision did not comport with the association’s own bylaws. Their request for a temporary restraining order was denied, however.
Similarly, in August a group of student-athletes at the University of Nebraska sued the Big Ten Conference, alleging tortious interference and breach of contract stemming from the Big Ten’s decision (at least initially) to suspend the fall 2020 football season. The Big Ten later changed course and decided to begin its football season in late October, seemingly mooting the Nebraska student-athletes’ case.
These cases suggest that, instead of facing litigation risk stemming from alleged negligence in retuning to play too quickly or without proper COVID-19 precautions, athletic institutions, at least in the short-term, are more likely to face litigation arising from decisions not to engage in certain activities, either on contractual grounds, tort grounds, or in an administrative law context. Nevertheless, because the long-term impact of COVID-19 is still unknown, particularly with respect to potential heart and lung damage, the possibility remains that negligence-based return to play cases will arise in the future. Sports Medicine and the Law will continue to monitor any developments surrounding COVID-19’s impact on professional and collegiate athletics, whether they involve litigation, new regulatory guidance, or otherwise.