Even With Virus Precautions, MLB Season Has Legal Risks

By Zachary Zagger
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Law360 (June 29, 2020, 7:02 PM EDT) -- Major League Baseball plans to play a shortened season starting next month amid the COVID-19 pandemic, but with the virus still spreading and even spiking in certain areas, experts say the season is fraught with liability risks, especially if fans are allowed into the ballparks at some point.

After months of back-and-forth between the owners and the players union, the sides have tabled some labor disagreements and decided to move forward with a shortened 60-game season. Players are set to report to their teams Wednesday for preseason training, with Opening Day scheduled for July 23 or July 24.

The plans call for teams to play in their home ballparks— unlike the NBA and some other leagues returning this summer to play games in a single location — without fans in attendance to limit the risk of spreading the virus. But reports earlier this month, including from The Dallas Morning News, have indicated that MLB is leaving the door open to allowing fans in stadiums, even at greatly reduced capacity, at some point later in the season if local authorities allow it.

"The Commissioner has made no decisions regarding permitting fans at games," MLB said in a statement sent to Law360. "The decision will be based both on whether local health authorities approve fans to attend games and whether our medical advisors believe it is appropriate to do so."

Earlier this month, Illinois Gov. J.B. Pritzker said professional sports stadiums could open with up to 20% capacity this summer, while Texas Gov. Greg Abbott said that stadiums may fill up to 50% of their capacity.

Houston Astros owner Jim Crane said last week his club plans to have fans in the stadium this season in order to counter the losses teams are suffering, according to multiple reports. The statement comes as Texas, and Houston in particular, has seen a significant increase in the number of new daily COVID-19 cases.

Although MLB and the teams are taking numerous precautions to protect the safety of the players and others involved, there are obvious public health risks with the virus still spreading. Experts warned that could lead to lawsuits.

"The risk of opening up is multileveled," said Ropes & Gray LLP sports attorney and litigator Christopher Conniff. "The most immediate risk you think about with fans coming back in is with fans themselves because you are bringing large groups of people together. If someone gets sick around the time of the game, then the person is going to assume he or she contracted it at the game."

Among the health protocols the league has instituted to protect players and those involved in the games are daily testing, limits on team personnel at the stadium, requirements for nonplaying personnel to wear face masks, mandated social distancing, and bans on spitting and high-fives, hugs or other group celebrations involving touching.

The league will also have a separate injured list for those who test positive for COVID-19 or have symptoms. Players who are "high risk" individuals, as defined by the U.S. Centers for Disease Control and Prevention, do not have to play and will continue to earn salary and accrue service time.

"The health and safety of players and employees will remain MLB's foremost priorities in its return to play," the league said last week. "MLB is working with a variety of public health experts, infectious disease specialists and technology providers on a comprehensive approach that aims to facilitate a safe return."

Even with everyone on high alert, the risks of contracting the virus may be unavoidable. Dozens of MLB players and team staff members have reportedly tested positive for COVID-19 in recent weeks. Several teams have shut down their spring training facilities in Florida and Arizona, two other states where cases have spiked.

Experts said it would probably be difficult for a player to bring a claim against the league or team for contracting the virus because such claims would likely fall under their existing collective bargaining agreement or the agreement reached to play the shortened season. But that is not necessarily the case for other team personnel, stadium workers, security and other employees needed to host the games.

Any worker suit would face two main hurdles, experts said: Legal action may be preempted by workers' compensation agreements, and it may be difficult to prove that some failure to take a certain precaution actually caused the employee to get sick.

"You could always apply for workers' compensation, but then you might have to prove that you contracted it at work," said Indiana University business law and ethics professor Nathaniel Grow, an expert in labor issues in sports. "Could you prove that the team was not taking sufficient precautions for coronavirus and that actually caused injury?"

Such cases could also be filed and then settled out of court, Grow added.

There have already been multiple lawsuits filed against employers over COVID-19 risks and infections. Chicago-area McDonald's restaurants were hit with claims that they had insufficient workplace protections, while Walmart and a Pennsylvania meatpacking plant are each facing wrongful death suits from family members of employees who died from the virus.

Team and stadium employees may be required to sign liability waivers informing them of the risks they may face in contracting the virus. The same goes for fans who buy tickets to attend games at a stadium that is allowed to open.

But experts say signing such a form does not stop people from bringing legal claims and that the waivers are often found to be unenforceable. 

Still, personal injury attorney Matthew Haicken of Haicken Law PLLC said the challenge for any COVID-19 case will be providing causation. With the virus spreading rapidly and clear contact tracing not in place, it may be impossible for fans who attended a game to prove that they caught the virus there.

"How do you prove that you got COVID from this facility and not from the supermarket or in the taxi on the way over?" Haicken said. "This is everywhere."

MLB and the teams will have to make sure they follow the safety precautions the league has laid out to a T and that every individual involved agrees to abide by the rules, such as wearing masks and practicing social distancing, the experts said.

With fans in the stands, risks are only heightened.

"The volume of potential plaintiffs increases significantly in a packed stadium or arena," Conniff said. "It is an interesting dynamic because you [could be] facing a high volume of lawsuits from a single event."

--Editing by Jill Coffey.

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