By Brian G. Remondino and Joseph E. Samuel, Jr., of Montgomery McCracken of Walker & Rhoads LLP
Sporting events and leagues across the world—from the community level to the professional level—including the Masters, Wimbledon, the Summer Olympics, the NBA, the WNBA, the NHL, the MLB, the Champions League, and all NCAA winter and spring championships, have been postponed or canceled as COVID-19 continues to spread at an alarming rate. President Donald Trump has told the commissioners of the major U.S. sports leagues that he expects their games, complete with fans in the stands, to return by August or September.[9] Others, however, including California Governor Gavin Newsom, New York Governor Andrew Cuomo, NFL Player Association Executive Director DeMaurice Smith, and Dr. Anthony Fauci are less optimistic.[10]
Whether most sports resume by August or not, one thing is certain: sports will resume eventually. In fact, some sports leagues around the world—including the Chinese Professional Baseball League (Taiwan) and the Korean Baseball Organization (South Korea)—have already resumed play without fans.[11] And, as some states begin to ease restrictions domestically, the NBA recently announced that it will allow teams in states and municipalities that are loosening stay-at-home orders to reopen their practice facilities as early as May 8th.[12]
The resumption of sports inevitably brings with it the possibility that players, coaches, staff, and fans may spread COVID-19, resulting in concentrated outbreaks or what some have called “biological bombs.”[13] In many states—including Pennsylvania and New Jersey—people and corporations can be held liable for negligently spreading infectious diseases. Therefore, when other sports do finally resume, leagues, teams, coaches, and their staff must take precautions to protect their players and fans from harm and themselves from tort liability. Below, we discuss the relevant case law and how such case law might be used against a league, team, coach, or staff member, including an athletic trainer, if a COVID-19 outbreak occurs. Then, we offer several precautions these actors should take before and after resuming play, with a particular focus on small colleges, high school sports conferences, community leagues, and others who do not have the same resources (or economic stakes) as the major professional sports leagues.
Tort Liability for the Negligent Spread of Infectious Diseases
Pursuant to long-standing Pennsylvania Supreme Court precedent, “[t]o be stricken with disease through another’s negligence is . . . no different from being struck with an automobile through another’s negligence.”[14] Therefore, if “a man contracted smallpox [or another disease] through another’s negligence, he would have a right of action against the tort-feasor.”[15] Similarly, New Jersey courts have held that physicians have a legal duty to promptly inform patients who test positive for a communicable virus and counsel the infected patients on how to avoid the transmission of the virus.[16] Third parties to whom the virus is spread may sue physicians who negligently fail to do so.
Courts in states across the country have adopted similar rules on the negligent transmission of disease, and tort plaintiffs have capitalized.[17] For example, after participating in a test-driving event hosted by a vehicle manufacturer on tracks laid out in the desert in Arizona, a vehicle dealer developed Valley Fever, a flu-like disease caused by spores found in the air when desert soil is disturbed by human activity.[18] The dealer sued the manufacturer for negligence, and a jury found in the dealer’s favor. The Fifth Circuit Court of Appeals affirmed, explaining that the manufacturer had a duty to warn of and protect its business invitees from known risks, including Valley Fever. The court also held that the manufacturer breached its duty, because, among other things, it could have—but did not—provide protective masks to the dealer and other participants.
Based on these legal principles, plaintiffs have already started filing lawsuits against defendants for COVID-19-related negligence. For example, multiple plaintiffs have sued Princess Cruise Lines, alleging that it failed to take adequate steps to protect them from the coronavirus.[19] Likewise, the estate of a deceased Walmart employee has sued Walmart, alleging that lax safety and cleanliness standards at one of its Illinois stores caused the employee to be infected, leading to the employee’s death.[20] It is foreseeable, therefore, that, if fans, players, or staff contract COVID-19 at a sporting event and can prove causation, leagues, teams, coaches, athletic trainers, and other staff may be exposed to significant liability. Did the league start too early and against the advice of medical experts, or worse, against federal and state orders or guidelines? Did an athletic trainer or team doctor screen players and staff for fevers or other COVID-19 symptoms before resuming practices or games? Did an athletic trainer or coach allow a player to play despite the presence of symptoms? Did a player hide his or her symptoms to remain on the field or court? Did the team provide masks to players, staff, and fans? These questions have already begun to arise in the wake of cancellations and disruptions caused by the virus, and they will continue to be asked as organizations consider resuming play.[21]
Best Practices
So, what should sports leagues, teams, coaches, athletic trainers, and other medical staff do going forward? In early April, the MLB proposed a plan that would require all 30 teams to play games at stadiums with no fans in the greater Phoenix area, and players, coaches, and staff would be sequestered at local hotels, where they would live in relative isolation and travel only to and from the stadium.[22] The MLB’s plan was supported by Arizona Governor Doug Ducey and federal officials at the Centers for Disease Control and Prevention (“CDC”) and the National Institute of Health (“NIH”).[23] Originally, the plan was to start as early as May of this year, but MLB Commissioner Rob Manfred later backed away from that timeline.[24] More recent reports suggest that the MLB is considering a new three-division plan in which teams would play only within their newly formed, geography-based, ten-team divisions. Under this plan, baseball would be played in the league’s existing stadiums, and the MLB predicts that it would be able to start play, albeit with no fans, in late June or early July.[25]
But what about small colleges, high school conferences, community leagues, and others that do not have the resources, teams of lawyers, or direct connections to the CDC and NIH that the major professional sports leagues have? It is unlikely that these smaller organizations can afford to (or would even want to) play out their seasons in sequester, as the professional sports leagues are considering. Below, therefore, we discuss several measures that these leagues and their teams can take before and after resuming play to minimize liability and, more importantly, to keep their players, staff, and fans safe.
Follow Federal and State Guidelines and Orders: First, and most importantly, leagues and teams should follow federal and state guidelines and orders “to the tee.” Until your respective state removes applicable shutdown and shelter-in-place orders, do not resume play. Similarly, pay close attention to the social distancing guidelines issued by the CDC and your respective state that restrict the number of people who may gather in one place. Until these guidelines are mitigated to allow the requisite number of players and staff needed to play your particular sport to gather, do not resume play. Furthermore, until these guidelines are mitigated to allow large groups of people to gather, do not open your fields, gyms, or stadiums to fans or strictly limit the number of fans that may attend events.
In many jurisdictions, if a defendant has violated a state law or regulation, and the violation causes harm to the plaintiff, the defendant’s conduct is considered negligent per se, i.e. the defendant’s conduct is automatically considered negligent. However, even in jurisdictions that do not recognize negligence per se, the standard of care will likely be defined by federal andstate guidelines and regulations, and future plaintiffs will have an easy time establishing negligence if a league or team violates the CDC’s or their state’s guidelines. Regrettably, disagreement has already arisen between federal and state actors, and among states themselves, as to when it will be appropriate to relax guidelines.[26] Therefore, leagues, teams, and their staff must monitor and follow these guidelines closely and, as a precautionary measure against liability, the safest option is to follow the most restrictive federal or state guideline currently in effect.
Start Slowly, React Quickly: Although following federal and state guidelines is a good start, compliance with them will not necessarily shield defendants from all liability. Therefore, we recommend that leagues start slowly and react quickly if players or staff test positive for COVID-19.
Athletic trainers or other medical staff should screen players, coaches, and staff for COVID-19 symptoms, including fevers or coughs, before resuming play and before practices and games for as long as the COVID-19 remains an issue. The Korean Baseball Organization—which has already resumed pre-season games and, as of the writing of this article, is set to launch its regular season on May 5th—is taking this precaution, and teams do not let players or staff with fevers enter team facilities.[27] Athletic trainers or other staff at high schools and small colleges should be able to access thermometers relatively easily, so this is a measure that many can take. Like with head injuries, players—especially teenagers and children—may try to hide their symptoms so that they can remain on the field. Therefore, coaches and athletic trainers must remain vigilant and should consider developing protocols similar to those used for concussions. If COVID-19 testing becomes more readily available in the future, leagues and teams should test all players and staff before resuming play and test anyone who develops symptoms as play continues.
If a player or staff member tests positive, he or she, and everyone he or she has come in contact with, should be quarantined immediately, and leagues and teams should not hesitate to cancel games or suspend the season. Speaking to the necessity of a quick response, Dan Straily, a former MLB pitcher now playing for the Lotte Giants in South Korea, recently stated that: “If anybody, anybody — if the No. 1 starting pitcher to the person cleaning . . . — anybody gets sick . . ., we postpone two weeks.”[28] Other international leagues, including the Nippon Professional Baseball league in Japan, have delayed scheduled re-starts after players tested positive. Leagues and teams here in the United States, including community leagues and high school conferences, should also react quickly when players or staff test positive. Sadly, this readiness to halt play must continue into the fall season, as many experts, including Dr. Fauci, predict that COVID-19 will return later this year.[29]
Take Extra Precautions: Finally, leagues, teams, and their staff should take extra precautions to prevent the spread of COVID-19. Consider requiring all players, staff, and fans to wear masks, bandannas, scarves, or other face coverings during practices, games, and around team facilities. In South Korea, umpires are wearing masks and gloves, and some coaches and team staff are wearing masks in the dugouts. Small colleges, high schools, and community leagues should encourage this preventive behavior. Similarly, leagues and teams should provide hand sanitizer and encourage players—particularly children or other potential players against which the assumption of risk defense would be less likely to be successful—to practice proper hygiene, avoid touching their faces, and practice social distancing where possible. By following these best practices, leagues, teams, athletic trainers, and medical staff can help prevent the spread of COVID-19 and reduce their risk of future liability.
Brian G. Remondino is an associate in Montgomery McCracken’s Litigation Department and member of the firm’s Commercial Litigation and White Collar and Government Investigations teams.
Joseph E. Samuel, Jr. is an associate in Montgomery McCracken’s Litigation Department and member of the firm’s Commercial Litigation team.
[9] Adam Schefter and Adrian Wojnarowski, Sources: President Donald Trump says NFL season should start on time, ESPN (Apr. 4, 2020), available at https://www.espn.com/nfl/story/_/id/28995399/sources-trump-says-nfl-start.
[10] Ken Belson and Marc Stein, Despite Trump’s Optimism, Lack of Sports Could Extend Into the Fall, New York Times (Apr, 7, 2020), available at https://www.nytimes.com/2020/04/06/sports/trump-sports-return-coronavirus.html; Jason Owens, NFLPA’s DeMaurice Smith skeptical about season starting on time: ‘Football is not essential’, Yahoo Sports (Apr. 21, 2020), available at https://sports.yahoo.com/nflp-as-de-maurice-smith-skeptical-about-season-starting-on-time-football-is-nonessential-233544519.html; Chris Bengel, Dr. Fauci: Some sports may have to skip this year due to the coronavirus pandemic, CBS Sports (Apr. 29, 2020), available at https://www.cbssports.com/general/news/dr-fauci-some-sports-may-have-to-skip-this-year-due-to-coronavirus-pandemic/.
[11] Jorge Fitz-Gibbon, Baseball league restarts in Taiwan with robot and mannequin ‘fans’ in seats, New York Post (Apr. 13, 2020), available at https://nypost.com/2020/04/13/baseball-league-restarts-in-taiwan-with-robot-and-mannequin-fans-in-seats/; Baseball quietly returns to South Korea as games begin without fans, ESPN (Apr. 21, 2020), available at https://www.espn.com/mlb/story/_/id/29074958/baseball-quietly-returns-south-korea-games-begin-fans.
[12] Jay Croft and Madeline Holcombe, Most US states will begin reopening within days, CNN (Apr. 30, 2020), available at https://www.cnn.com/2020/04/30/health/us-coronavirus-thursday/index.html; Adrian Wojnarowski, NBA pushes back workout date amid uncertainty, ESPN (Apr. 27, 2020), available at https://www.espn.com/nba/story/_/id/29099194/nba-reopening-team-practice-facilities-friday-where-local-restrictions-eased-sources-say.
[13] Nicky Bandini, How Atlanta’s feel-good Champions League story became a ‘biological bomb’ for coronavirus in Italy, Spain, ESPN (Apr. 3, 2020), available at https://www.espn.com/soccer/italian-serie-a/story/4081211/how-atalantas-feel-good-champions-league-story-became-a-biological-bomb-for-coronavirus-in-italyspain.
[14] Billo v. Allegheny Stell Co., 195 A. 110, 114 (Pa. 1937).
[15] Id.; see also Smith v. Walker, 11 Pa. D. & C.4th 663, 664 (Pa. Com. Pl. 1991) (permitting plaintiff to bring a negligence claim against an individual for negligently spreading a sexually transmitting disease).
[16] See C.W. v. Cooper Health Sys., 906 A.2d 440, 451-52 (N.J. Super. Ct. App. Div. 2006).
[17] See, e.g., John B. v. Superior Court, 137 P.3d 153, 156 (Cal. 2006); Crim v. Int’l Harvester Co., 646 F.2d 161 (5th Cir. 1981); Crowell v. Crowell, 105 S.E. 206, 208 (N.C. 1920).
[18] Crim, 646 F.2d 161.
[19] See, e.g., Weissberger et al. v. Princess Cruise Lines Ltd., No. 2:20-cv-02267 (C.D. Cal.).
[20] Toney Evans, Special Administrator of the Estate of Wando Evans v. Walmart Inc. et al., No. 2020L003938, Circuit Court of Cook County.
[21] In the professional sports setting, where relationships between teams, players, and fans are largely covered by contract law, commentators have already begun to consider questions of liability raised by the virus. See, e.g., Michael McCann, Six Possible Fallouts From the Suspended NBA Season, Sports Illustrated (Mar. 12, 2020), available at https://www.si.com/nba/2020/03/12/nba-season-suspended-coronavirus-impact (discussing duties and potential liability owed by leagues to spectators and journalists).
[22] Jeff Passan, Sources: MLB, union focused on plan that could allow season to start as early as May in Arizona, ESPN (Apr. 7, 2020), available at https://www.espn.com/mlb/story/_/id/29004498/mlb-union-focused-plan-allow-season-start-early-arizona. The NBA is reportedly exploring a similar option to resume play based in Las Vegas or Disney World in Lake Buena Vista, Florida. Jack Baer, NBA considering finishing season out at Disney World amid coronavirus pandemic, YahooSports (Apr. 29, 2020), available at https://sports.yahoo.com/nba-finish-season-disney-world-coronavirus-pandemic-player-safety-020438272.html.
[23] Ryan Young, Arizona governor believes state could handle potential isolated MLB season after coronavirus, Yahoo Sports (Apr. 14, 2020), available at https://sports.yahoo.com/arizona-governor-doug-ducey-believes-state-handle-mlb-isolated-season-phoenix-rob-manfred-coronavirus-covid19-pandemic-035128126.html.
[24] Mark Townsend, Rob Manfred: No MLB season until he’s comfortable players and fans will be safe, Yahoo Sports (Apr. 14, 2020), available at https://sports.yahoo.com/rob-manfred-no-mlb-season-until-hes-comfortable-players-and-fans-will-be-safe-001715387.html.
[25] Bob Nightengale, MLB discussing plan to start season in late June, playing in home stadiums with realigned league, USA Today (Apr. 28, 2020), available at https://www.usatoday.com/story/sports/mlb/columnist/bob-nightengale/2020/04/28/mlb-optimistic-about-starting-season-late-june/3039275001/.
[26] As Trump says he “calls the shots,” governors form regional groups to consider when and how to reopen, The New York Times (Apr. 13, 2020), available at https://www.nytimes.com/2020/04/13/us/coronavirus-updates.html#link-525f113e.
[27] Baseball quietly returns to South Korea as games begin without fans, ESPN (Apr. 21, 2020), available at https://www.espn.com/mlb/story/_/id/29074958/baseball-quietly-returns-south-korea-games-begin-fans.; Jeff Passan and Alden Gonzalez, Can the U.S. return to sports soon? South Korea might offer clues, ESPN (Apr. 6, 2020), available at https://www.espn.com/mlb/story/_/id/28998585/can-us-return-sports-soon-south-korea-clues.
[28] Id.
[29] Rachel Sandler, Coronavirus Will Return in the Fall, Fauci Predicts, But the U.S. Will Be Better Prepared, Forbes (Mar. 30, 2020), available at https://www.forbes.com/sites/rachelsandler/2020/03/30/the-coronavirus-will-return-in-the-fall-fauci-predicts-but-the-us-will-be-better-prepared/#30ebdc94e39b.
