By Robert J. Romano, Esq.
The Department of Homeland Security (DHS) granted the National Football League immunity from lawsuits in the event that the NFL’s security measures fail to prevent a terrorist attack at league stadiums on both game days and non-game days by lending its “certification” to the NFL Best Practices for Stadiums Security.
The NFL Best Practices for Stadium Security is a set of guidelines for stadium security management which includes standards for game day and non-game day operations, threat assessments and emergency plans, and the hiring and training of security personnel. The NFL Best Practices Stadium Security guidelines are designed to deter and defend against terrorist attacks at sports stadiums located in NFL cities.
In 2002, in the wake of the terrorist attacks on both the World Trade Center in New York City and the Pentagon in Washington D.C., the U.S. Congress enacted, as part of the Homeland Security Act, the Support Ant-Terrorism by Fostering Effective Technologies Act (the “Safety Act”). The Safety Act was in response to the liability stemming from 9/11, which left companies afraid to implement new anti-terrorism products and services for fear they would be liable if such failed in stopping an attack. As acknowledged during the Congressional hearings, the purpose of the Safety Act “is to ensure that the threat of liability does not deter potential manufacturers or sellers of anti-terrorism technologies from developing and commercializing technologies that could save lives.”
The Safety Act provides incentives for companies and organizations, or in this case, the NFL, sports leagues and stadiums, to develop anti-terrorism products and services by limiting or eliminating liability should those products or services be involved in an act of terrorism. An act of terrorism is defined as an act that (i) is unlawful; (ii) causes harm, including financial harm, to a person, property or entity in the United States; and (iii) uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States.
There are two different classifications a league, stadium, or university facility can apply for with the Department of Homeland Security. The first classification involves having its threat-assessment best practices, threat response plans and control center operations termed “designated.” A sport facility termed “designated” by the Department of Homeland Security will be provided the
following significant benefits:
a. No punitive damage exposure;
b. Claims against the seller are capped at an amount no greater than the limits of liability insurance coverage required to be maintained by the seller through DHS;
c. Exclusive federal court jurisdiction;
d. Plaintiff’s recovery is reduced by amounts from collateral sources; and
e. No joint and several liability for non-economic damages.
Additional protections can be obtained by seeking the second classification of “certification.” A “certified” product, service, or security plan provides the following additional benefits:
a. A presumption of dismissal pursuant to the government contractor defense;
b. Placement on DHS’s approved list for Homeland Security Products; and
c. A Certificate of Conformance.
What may be equally important is that under either “designation” or “certification,” the only proper defendant in any civil lawsuit is the seller of the “Safety Act” approved security plan. This, in effect, may legally immunize customers, suppliers, subcontractors, etc., which may provide a potential competitive marketplace advantage.
The Safety Act can limit liability exposure at a predetermined amount of insurance, and even eliminate a company’s liability exposure altogether. Thus, knowledge and understanding of the Act is a vital risk management and litigation management tool for leagues, stadiums, and college and university sports facilities that use security processes and assessments, together with best-practices for non-game-day operations, game-day operations, threat assessments and emergency plans designed to prevent, detect or deter acts of terrorism.
Therefore, leagues, stadiums, and college and university sports facilities should consider seeking either Safety Act “designation” or “certification” from the Department of Homeland Security to manage the risks associated with running large sporting facilities and events.
Robert J. Romano is the founding partner of THE ROMANO SPORTS AGENCY, which specializes in representing NCAA and Professional League Coaches in all aspects of contract negotiations. For more information, visit his web site at www.romanosportslaw.com, or contact him at rjr2128@columbia.edu
