By Aron Z. Karabel, Caraline E. Rickard and Taylor J. Askew, of Waller Lansden
Soccer matches played to empty stadiums in Italy. A marathon run through shuttered streets in Tokyo. The surreal images of disrupted sporting events were some of the most powerful symbols of the beginning of COVID-19 crisis. Fittingly, sports organizations were some of the first in the United States to recognize their responsibility to protect the public by shutting down mass gatherings. On March 12, 2020, the day before the White House officially declared a national emergency, the NCAA announced it was cancelling the March Madness tournament. The NCAA was quickly followed by the NHL, NBA, MLB, Boston Marathon, Masters, and Kentucky Derby, all of which announced cancellations and postponements. On March 24, even the 2020 Tokyo Olympics was postponed until 2021, the first time the Olympics have been canceled for anything other than a World War.
Sports fans with time on their hands are aching to the get back to the game. Of course, sports organizations are, if anything, even more ready to open up. But the multitude of different, and sometimes conflicting, interests to consider—from employees to athletes to vendors to fans—not to mention the patchwork of multistate orders to be followed and the need for more widespread testing, can make the task daunting. What legal considerations should sports organizations take in to account while planning to bring employees back in and reopen their gates? We have put together a list of the broader issues for sports organizations as we continue to hear from federal, state, and local authorities about reopening strategies and criteria.
An Overview of the National Framework for Reopening
On Friday, April 16, 2020, the White House Coronavirus Taskforce announced its plan for reopening America after COVID-19. While the ultimate decisions about when to reopen will be left to governors based upon the conditions in their individual states, the Taskforce proposed three phases of reopening, with each new phase triggered by meeting certain standards, called “gating.” Each phase contains specific guidelines for individuals, all employers, and specific employers in certain sensitive industries, including sports. These national guidelines are the overarching framework for any reopening and appear to be driving guidance from athletic organizations like the NCAA.
When evidence in a state supports a downward trajectory of documented cases or positive tests within a 14-day period, a state may enter Phase 1 of reopening. States that have already met this standard were authorized to begin Phase 1 as early as April 17. In Phase 1, individuals are expected to maintain social distancing. Employers are to consider special accommodations for vulnerable populations, encourage telework whenever possible, return to work in phases, close common areas where personnel are likely to congregate, enforce strict social distancing protocols, minimize non-essential travel, and adhere to CDC guidelines regarding isolation following travel. Schools, youth activities, senior living facilities, and bars and restaurants are to remain closed, while large venues, gyms, and elective surgeries are allowed to begin operating under “strict physical distancing protocols.” These “large venues” specifically include “sporting venues.” There has not yet been any guidance on what is meant by “strict physical distancing protocols”; this may ultimately be left up to specific states to define.
States may enter Phase 2 if they do not experience a significant rebound of cases after 14 days. Individuals may resume non-essential travel and gather in groups of not more than 50 people, while vulnerable populations continue to shelter in place. Employers are to continue to encourage telework where possible, close common areas, and consider special accommodations for vulnerable populations but may resume non-essential travel. Most of the listed sensitive industries are allowed to reopen with “moderate” distancing protocols. For the world of sports, Phase 2 may mean resuming school-related and youth sports leagues.
Phase 3 is the “returning to normal” phase. States may enter Phase 3 if there is no rebound of cases after 14 days in Phase 2. Vulnerable individuals may resume public interactions while practicing social distancing, while low-risk populations are cautioned only to minimize time spent in crowded environments. Employers are allowed to resume unrestricted staffing of work sites. And all sensitive industries, including large venues, may reopen with minimal distancing protocols.
Dr. Anthony Fauci, the face of national pandemic response, has responded to questions about how the phased response will apply to sporting events. He has suggested that players, coaching staff, and other necessary personnel should be quarantined in controlled locations, such as large hotels, subjected to rigorous weekly testing to ensure their health, and be allowed to travel only to and from the stadium, where games would be played to television cameras only (restrictions in line with the MLB’s so-called Arizona Plan, discussed more below). As restrictions begin to lift in Phase 2, President Trump has suggested that fans may be allowed to start coming back into stadiums operating at diminished capacity, where “maybe they will be separated by two seats.” On the other hand, Dr. Fauci has said it is “conceivable” that by Phase 3 sporting events will move “more toward normal,” but “there will always have to be attention to make sure we don’t do all that packing in together.” He stressed that life, including sporting events, cannot completely return to normal until there is a vaccine for COVID-19.
State and Local Reopening Orders Complicate the Legal Landscape
While these are the national expectations for phased reopening, the Taskforce has stressed that ultimate reopening decisions lie with state governors. This can be a special challenge for sports organizations, which often operate in a new state every week. To help coordinate reopenings, some geographic regions have formed regional taskforces. Within some states, major cities are also working together to build coordinated plans. This could help ease the confusion.
To help get around this confusing landscape, the MLB has proposed the Arizona Plan. This plan proposes that all 30 MLB teams would be brought to the Phoenix, Arizona, area—where COVID-19 cases are already beginning to trend downward—quarantined in hotels, and play their games to cameras at the Arizona Diamondbacks field and spring training facility. Solutions like this could help sports organizations avoid the complex web of state, local, and federal orders by remaining in a safe and controlled environment. But it comes at significant cost to players, who would have to face isolation away from their families for perhaps months, and teams, which would absorb the increased costs of operating away from home without the revenue generated by ticket sales.
Bringing Back Employees
As sports organizations begin to ramp back up their seasons, one of the first steps will be bringing back employees who may have been furloughed or working from home. There are a few things to keep in mind about bringing back employees.
First, begin planning for which employees are essential to reopening and which employees can continue to work remotely. Both the phased reopening plan and public health officials encourage bringing back employees gradually, rather than all at once. However, this may be more difficult for sporting organizations, which as “large venues” are unique in their ability to reopen as early as Phase 1, at the same time that they are authorized to bring back employees, so a good plan is essential.
Second, national guidelines require stepping down social distancing gradually, like minimizing in-person meetings, social gatherings, and travel for some period of time. Again, it is important to plan ahead and stay up-to-date on and follow all governmental guidelines on this front. Consider developing protocols for things like social distancing, cleaning, sick employees, and use of PPE. If practical, also consider reconfiguring physical workspaces, such as rearranging workspaces to space out employees, placing barriers between workspaces, closing or modifying common areas, modifying high-touch surfaces, and providing PPE. Finally, the federal Equal Employment Opportunity Commission (EEOC) has issued guidance stating that businesses can continue to take precautions like temperature checks and asking questions about possible COVID-19 symptoms before allowing employees to enter to workplace. The EEOC guidance also confirms that employers are also allowed to require returning workers to wear PPE and enforce frequent handwashing and social distancing. Keep in mind that some employees may need reasonable accommodations of these requirements, including high-risk employees with underlying health conditions who may not want to, or be able to, come back yet.
Third, employee awareness is key. Consider letting all employees know about the gradual reopening and providing updates to employees about how it is going (so they will see the employees at work are staying safe). It will have the desired effect of minimizing the likelihood of exposure and quelling employee fears. You may also consider bringing back employees on reduced hours (splitting time between at home and in office), and arranging employee trainings (probably virtual ones) about these protocols and precautions, who to go to with concerns, and, for management and supervisors, how to address employee concerns. In conjunction with these trainings, also consider revising written employment policies to formalize protocols, as well as add policies for new issues like furloughs, working from home, and pandemic response, if you do not already have them. Finally, if you have an Employee Assistance Program (EAP) as an available resource, consider making counselors and other supports available to employees who are concerned about returning to work and even making health screenings available (if not required). Taking these steps to reassure employees will address the “good faith” requirement to reduce “recognized hazards” set by the Occupational Health and Safety Administration.
Finally, after reopening, sports organizations will need to remain vigilant to continued threats in the workplace. Establish protocols for what to do if an employee tests positive, the threat reemerges, or other unexpected events take place. While employees may be skeptical of new protocols or reluctant to return to work for a variety of reasons, employers are still free to follow existing employment policies, including discipline up to and including termination for employees who violate policies (including new policies like social distancing) or refuse to come to work without a valid reason.
Ensuring the Safety of Fans, Spectators, and Visitors
In addition to the precautions outlined above, sports organizations may want to consider providing advance notification to the public of reopening plans and what it will expect from all stakeholders who are at the stadium/venue, ranging from such things as entrance requirements to bathroom protocols to waivers to entrance locations to seating arrangements to shopping guidelines, just to name a few. Educating guests prior to their arrival can help minimize confusion, increase buy-in, and manage compliance with federal, state and local safety guidelines. Likewise, teams will want to coordinate with vendors at the stadium so that everyone operating under one roof is on the same page, applies safety protocols consistently, and has a plan in place should a COVID-19 incident occur.
People will be excited to return to the events they love, but those events—at least for now—are going to be fundamentally different experiences than those to which we are all accustomed. Setting expectations early will be key to maximizing the “Fan Experience”. For example, if the ticketing gate is going to be taking peoples’ temperatures prior to allowing them entry into a particular venue, let patrons know that beforehand. Consider opening up gates earlier than prior years to accommodate these additional security precautions. If there are multiple temperature checkpoints, make that fact known well in advance so that people do not overwhelm one checkpoint while leaving another relatively unused. Some confusion is inevitable, but the better educated the fans are prior to arrival, the more “normal” the experience will feel.
