Around 9:30 pm on March 11th, the NBA suspended its season seconds before tipoff of the Utah Jazz-Oklahoma City Thunder game. At the arena, fans were told the game was postponed due to “unforeseen circumstances.” As it turned out, the reason for the postponement was that a Jazz player, who made it a point to touch every mic in the media room to show his “fearlessness” of COVID-19 just days prior, tested positive for the virus. The next day would be remembered as the day the sports world stood still. Like a domino effect, most professional and college sports seasons were suspended or cancelled within days.
The ever changing nature of the situation – i.e. the recent return of the MLB season, immediately followed by a postponement of games after an outbreak of the coronavirus among some of its teams – makes this post a little challenging, but what doesn’t necessarily change is the law. Underlying legal implications continue to loom in the background of everyone’s greatest questions regarding the return of sports.
Can they play? Can they sit out?
On the surface, it seems reasonable to assume that athletes will have to sign liability waivers before they can return to play. Athletes are no stranger to waivers – most sign acknowledging and assuming the risk of their sport. Even fans waive liability via fine print on the back of their ticket(s). Generally, athletes and fans are aware of the risks associated with pre-COVID waivers – concussions, broken bones, getting hit in the head with a baseball, etc. But COVID-19 is a disease most people do not understand with effects that are widely unknown, making this waiver very different.
The waivers will likely include two main provisions: (1) where the participant assumes the risk of contracting COVID-19 through participation in, or attendance at, the game; and (2) where the league, the team, the college, etc. is held harmless for any COVID-19 related claims.
These waivers or “pledges” are under scrutiny in college athletics, where there is concern over the voluntariness of young adults absolving their college or university from liability should the athlete contract the virus. The documents look like contracts of adhesion and pressure athletes who are not only worried about the virus, but are worried about the consequences of refusing to sign the waiver – losing their scholarship, their spot on the team, etc. College football players have formed unity groups demanding a ban on the use of COVID-19 liability waivers as well as safer protocols for their return. Two Senators have plans to formally introduce the “College Athlete Pandemic Safety Act” which would eliminate the ability of colleges and universities to use liability waivers as a basis for student-athletes returning to campus and resuming training activities. Senator Blumenthal of Connecticut stated that forcing these athletes to sign away their rights in the middle of a pandemic is “just the latest in a litany of unacceptable actions schools have taken to exploit these young people.”
On the other hand, professional athletes have players associations’ support, advocating for a safer return. Executive Directors of players associations for major professional sports leagues have expressed concerns about the liability protections included in a Senate Republican proposal that would provide a temporary legal safe harbor for businesses – including the leagues – that make “reasonable efforts to comply with public health guidelines and don’t demonstrate gross negligence.” While leagues are taking steps to ensure safety of their players, most professional athletes have the option to opt-out of their seasons with “no questions asked.” Major sports leagues have said that anyone with a pre-existing health condition can petition to sit out and still get paid. Athletes who choose to sit out for other reasons are free to do so, but they will not get paid. Many athletes that have decided to opt-out are wealthier star players who feel stable enough in their career to forgo pay for the season. Other athletes are not so fortunate, surviving paycheck-to-paycheck or expecting shorter careers. A WNBA star was recently denied a medical waiver after petitioning to sit out because of her long-time battle with Lyme disease. She now has the choice to risk her life or forfeit her salary.
How can they play?
The NBA introduced the concept of “the bubble” for their return to play. This brings all players, coaches, and required personnel to one location, with COVID-19 testing and safety measures in place. Teams are allowed only a limited number of players and personnel, and guests are not welcome. If a player leaves without league approval, he must go through a 10-day quarantine and will see a reduction in pay for any game(s) missed. During their stay in the bubble, players must follow a number of guidelines including rules against entering a teammate’s room, playing doubles in tennis, and sharing goggles or towels. The NHL will also return to play following similar guidelines, this time in Canada with two bubbles separating the Eastern and Western Conferences.
The MLB went a different route and is hosting games at teams’ home ballparks, with the exception of one. The Canadian government told the Toronto Blue Jays they could not host games in Toronto because cross-border travel would not “adequately protect Canadians’ health and safety.” The Blue Jays were confined to their “campus” in Toronto and did a little bit of forum shopping before landing in Buffalo as their home-for-now.
While living in a bubble may not be ideal, the current status of the leagues is proof that the bubble can work. The National Women’s Soccer League (NWSL) was able to crown a champion after a month-long tournament that resulted in zero positive COVID-19 tests. The NBA and the NHL are currently reporting encouraging testing results as well, with no positive tests in any of their collective bubbles. However, things are not going as smoothly outside the bubble. Major League Baseball is struggling to contain a coronavirus outbreak as 18 players on the Miami Marlins tested positive, as did 13 members of the St. Louis Cardinals organization. Broadcasts showing players “high-fiving, spitting and not wearing masks” are not leaving fans with high hopes.
Who else can play?
In the midst of the COVID-19 pandemic, the United States immigration system is in shambles. The country that takes pride in equal protection and equal opportunity also takes pride in its top notch sports talent, believing it to be the best in the world. What isn’t necessarily boasted about is the fact that a lot of the greatest talent is international. This year, for example, the NHL rosters are comprised of 690 players, 75% of whom were born outside of the U.S.. The MLB has a significant international presence as well, with over 28% of players born outside the country. While some of these athletes have become U.S. citizens, many are here on visas. Professional athletes on a P-1A Visa have not been impacted by travel restrictions, yet. Many, however, had or are having to deal with travel bans, consulate closures, and government ordered quarantines.
International collegiate athletes had a scare as well, after an early July announcement from the U.S. Immigration and Customs Enforcement (ICE). For years, international athletes have been encouraged to apply for F-1 Visas which allow them to train and compete at the collegiate level while attending an approved academic program. In an effort to pressure universities to reopen, the Trump Administration ordered international students on F-1 Visas to leave the country or transfer colleges if their schools offer only online classes in the fall. The order was thankfully rescinded, but not without pressure from students and faculty across the country.
What about the young stars?
Similar to college athletes, youth athletes will be required to sign a waiver before participating in any practice, game, or tournament. These athletes are under the age of 18 and as such, their parents are responsible for making the right decision for them. Youth athletes on travel teams are also being impacted by travel restrictions that require out-of-state travelers to quarantine for 14 days. While kids are ready to get out of the house, it’s clearly not as simple as it was before.
What about the businesses?
Professional, college, and youth sports are really just businesses surviving contract to contract. Leagues and sponsors will be looking to see if they can be excused from performance if the terms are impossible/impracticable, or if there has been a frustration of purpose. Whether a contract allows for termination due to COVID-19 or something similar depends on the wording of the force majeure clause. For example, whether governmental action is included or excluded as a force majeure event will dictate whether termination is on the table.
The COVID-19 crisis has also had a rippling effect with organizations filing for bankruptcy. Representatives of the XFL, a newer football league that filed for bankruptcy before its purchase by ‘The Rock’ and his investor group, alluded to the fact that they were not “insulated from the harsh economic impacts and uncertainties” brought on by COVID-19. Youth sports leagues are also struggling due to the cancellation of live sporting events, which is in turn causing “catastrophic declines” in revenue, forcing some companies to file for bankruptcy. Additionally, if the college football season is cancelled, we could see a $4 billion loss in revenue in the economy, with implications reaching far beyond the field.
What’s next?
I would be remiss to finish this post without highlighting the human-rights crisis that has evolved in the midst of the pandemic. In 2016, Quarterback Colin Kaepernick kneeled during the national anthem in protest of this country’s oppression of Black people and people of color. There is evidence that he was ostracized by the NFL for his actions as the once-star QB has since been unable to sign a contract. Teams were worried about the potential “circus that would erupt” if they signed an athlete with a “controversial” opinion. Fast forward four years, racism and police brutality are at the forefront of the media and many star athletes are using their platforms to bring awareness and get fans involved in the Black Lives Matter movement.
In addition to kneeling during the national anthem, many athletes are taking actions such as putting social justice statements on their jerseys. Other athletes have taken a greater step and have exercised the opt-out clause in their contracts for advocacy purposes. Some WNBA players are following in Maya Moore’s footsteps and will sit out this season to focus on social justice reform.
Washington Nationals pitcher Sean Doolittle said it best: “Sports are like the reward of a functional society.” While many questions still remain, we have to ask this: With everything going on in this world, have we really earned this reward?
Allie Band is a second year student at Northeastern University School of Law. Prior to attending law school, she graduated from the University of Florida with Bachelors of Science in Business Administration and Sports Management. Allie is inspired by movements toward racial and systemic justice, particularly those in the sports world.