By, Gil Fried, Esq., Professor and Chair of Sport Management Department at the University of New Haven
The Corona-19 virus has thrown the world into an uproar. We are in unprecedented times. We have never faced something similar to this- shutting down countries. The same can be said about sport programs. While the major sport leagues (NBA, NHL, and MLB), Olympics, and collegiate athletics (NCAA March Madness) have garnered most of the attention- youth sports are not far behind. High school athletics have been cancelled across the country which will impact the ability for students to showcase their talent and this could impact the ability of some to obtain a college scholarship based on their athletic ability. Next down the line will be all the youth sport organization who will postpone and cancel their seasons.
What Went Wrong
As a risk management professional, my angle is always focused on what went wrong, how can it be prevented in the future, and is there any liability. In this case we know what went wrong. A little virus caused significant damage. It wiped out entire seasons, closed facilities, shut down programs, and let to many people losing their jobs/businesses. One thing that we learned from the virus is how unprepared we were. While I have helped write various safety plans, I had never examined the possibility of a virus or sickness causing such harm. I have examined chemical/biological attacks that could shut down a venue, but nothing concerning shutting down an entire city, state, or country. The question this raises is whether or not others anticipated such an issue. The answer was probably no. For example, would insurance cover such a massive closure? Most insurance policies have exclusions that do not cover issues such as natural disasters or wars. Would the current virus fall under such a coverage? Would government assistance be provided to any impacted sport organizations? These are the types of questions we are asking now, but would not have thought about these issues two months ago. This helps us appreciate that even the best risk management plans cannot protect against every possible issue, because there will always be something new and unexpected.
The closest analogy I could think of would be CA-MRSA skin infections which are sometimes found among athletes, military recruits, and some children. Factors that have been associated with MRSA’s spread include close skin-to-skin contact, openings in the skin such as cuts or abrasions, contaminated items and surfaces, crowded living conditions, and poor hygiene. When there was a significant MRSA outbreak in athletic related facilities several years ago, this is what was suggested as safety precautions-it sounds early familiar to what we are experiencing now:
Best practices to prevent the Staph and MRSA skin infections include the following:
Good hygiene practice
Keep your hands clean by washing thoroughly with soap and water or using an alcohol-based hand sanitizer
Keep cuts and scrapes clean and covered with a bandage until healed
Avoid contact with other people’s wounds or bandages
Avoid sharing personal items such as towels or razors
Use a barrier (e.g., clothing or a towel) between your skin and shared health club or other equipment
Wiping surfaces of equipment before and after use.
These strategies sound reasonable, but were unexpected. What went wrong is that we found out that we do not know all the risks. We can be very prepared, but it is impossible to be completely prepared.
How to Prevent
Best practices for preventing infectious disease exposure are often tailored on protections in the workplace which include the following:
Written policies and procedures for infection control
Employee screening, vaccination, and education
Communication and follow up with the physician regarding the employee’s clearance to work
Absence Management program that allows sending a sick employee home, encouraging the employee to stay at home while feeling ill, and seeking medical attention
Good housekeeping including cleaning/disinfecting contaminated work areas with an EPA- approved detergent/disinfectant
These strategies can be helpful, but will not always eliminate all concerns. For example, practicing social isolation is a great step right now, but there could be 1,000 people practicing it, and 10 people can destroy the practice by getting to close and continuing the spread with inadvertent acts. In fact, every organizational executive should assume that things will go wrong. It is nice to think positive thoughts, but being a devil’s advocate and thinking about the worst has significant value.
The best way to prevent problems is planning and practicing. Our new knowledge set based on the virus will require everyone to examine planning in a different context. For example, is there enough toilet paper available in case it becomes hard to find toilet paper. The same goes for hand sanitizers and surgical masks. Lean inventory management is a great idea, but when things go wrong and supplies tighten, it could significantly harm an organization.
Is Their Liability?
Negligence refers to the failure to act in an appropriate manner when a facility or organization has a responsibility to protect others. This is the concept of duty and if a facility/organization has breached their duty to protect those in their charge. A medical malpractice or other claim associated with a virus-related injury can be examined like a MRSA claim.
One generally cannot sue for malpractice/negligence if they experience a MRSA infection. Malpractice is an instance of negligence or incompetence on the part of a professional. When an athlete contracts MRSA, it’s typically not due to negligence or incompetence. Rather, it’s due to the conditions within the facility and is generally accepted as being a risk of participating in athletics. However, one may be able to prevail if they can prove that the infection came directly from something that could have been prevented—for instance, knowing there was an outbreak and not cleaning the facility to prevent another. The same could be said about the current virus. If a facility knows that a person with the virus was in their facility, and that the virus was very contagious, then they have an obligation to sanitize the facility, warn patrons, or close a facility.
One of the most well-known MRSA cases was: ZAFFARESE v. Iona College, 2009 NY Slip Op 4417 – NY: Appellate Div., 2nd Dept. 2009. In that case the college athlete contracted MRSA and sued his college. Supreme Court granted the motion to dismiss part of the first cause of action that alleged the college owed him a duty to maintain its facilities in such a manner that they are free from the MRSA bacteria. The court also dismissed the second cause of action, which alleged that the athletic training personnel employed had the duty to: routinely screen for the presence of such bacteria, to provide the plaintiff with medical care, and to instruct the plaintiff in precautionary measures to help him avoid contracting a MRSA infection. The court concluded that these alleged obligations far exceed any legally cognizable duty on the part of the defendant under the circumstances presented. However, the court felt the first cause of action’s second component- alleging that the defendant had actual or constructive notice of the presence of MRSA bacteria in its athletic facilities and it negligently failed to take reasonable measures with respect thereto- could proceed. That does not mean that the college did anything wrong, just that if the plaintiff could prove the college knew about MRSA’s presence on their field and did nothing about it. The college could be liable.
Another issue will be whether a facility/organization can recover for a lost season or event(s). This is where an insurance policy that covers business interruption might be relevant. Business interruption coverage is triggered when a covered peril causes damage to covered property/facility. The damage must be sufficient to render the facility unusable. A standard insurance policy covers lost business income if operations are interrupted because the facility is destroyed. This is a high level to overcome and Coronavirus-related claims are unlikely to cause the property damage needed to trigger business interruption insurance coverage. Even if facilities are rendered unusable by the virus, business interruption coverage typically contain exclusions for bacteria, viruses, epidemics, and other pollutants.
Another important policy element would be an event interruption insurance policy. Many larger events have such a policy, but such policies are normally not seen in youth sports as there are so many events during a league’s season that it would be impossible to cover them all. Similarly, a facility might have insurance coverage for one event, but would normally not have it for several months’ worth of small events.
There also could be several breach of contract claims. One of the concerns will be all the sponsorship contracts. Would sponsors demand their money back? Many might chalk it up as a loss, but hurting businesses might ask for their money back and that could put a financial strain on various organizations/facilities. Other contracts include registration agreements, tournament fees paid, equipment and uniform orders, referee contracts, facility usage contracts, and similar contracts. Normally there is an “act of god” clause (where a contract could be covered by a certain event-normally a natural disaster) that is inserted in many contracts, but would this qualify as an act of god?
Conclusion
We are in very trying times that are unprecedented. That should not stop us from being as proactive as possible in trying to identify the wide variety of risks our programs face and then trying to identify appropriate solutions. Lets all be safe and responsible out there.
