MLB Offers Test Case For Leagues Handling Virus Outbreak

By Zachary Zagger
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Law360 (July 30, 2020, 8:05 PM EDT) -- Major League Baseball postponed several games this week just days into the shortened 2020 season after more than a dozen players and other members of the Miami Marlins organization tested positive for COVID-19, a situation legal experts say shows that leagues must remain hypervigilant to protect the health of those involved and avoid legal headaches.

The league opened the 2020 season last week after a four-month delay forced by the global pandemic. Games over the opening weekend saw huge television viewership, with ESPN up 232% for its opening day broadcast from last year, reflecting pent-up demand for live sports.

However, just days later MLB is already dealing with a COVID-19 outbreak involving the Marlins and Philadelphia Phillies that came to light after the teams played a three-game opening weekend series in Philadelphia.

At least 18 Marlins players, coaches and personnel traveling with the team have tested positive for the virus, according to ESPN, while the Phillies on Thursday shut down activities at their ballpark after a coach and a team staff member tested positive.

The situation has raised alarm bells for MLB and other sports leagues that are preparing to return to play amid the continuing spread of the virus, which has killed more than 150,000 Americans.

"There are many stakeholders watching the Marlins' outbreak developments closely, especially when you consider that certain teams are making significant financial investments to return to play and record-setting viewership that evidences just how much fans have missed America's favorite pastime," said Joseph Hanna, chair of the sports and entertainment practice group at Goldberg Segalla LLP.

"Leagues need to remain agile to stay ahead of the coronavirus and to keep the athletes, coaches and essential staff safe," he said. "That remains the highest priority for the continuation of the professional leagues' return to play."

There are concerns that if a significant number of games are canceled or the season does get shut down, it could erase whatever revenue the leagues are able to generate to offset losses from playing a third of the usual games and not having fans in stadiums.

Ensuring the health and safety of the players is paramount both to keeping the teams on the field and preventing future legal battles down the road.

"This COVID-19 [virus] doesn't discriminate," said Frank Darras of Darras Law, who handles sports disability claims. "It doesn't matter if you are 19, 29 or 69. it doesn't care what sport you are in or whether you are a coach or a player. It is taking down people everywhere, and it is spreading despite our best efforts."

Darras said he is particularly concerned with the risk to coaches, who tend to be older and may have some preexisting conditions that make contracting the virus more dangerous. For the players, who have guaranteed contracts in MLB, serious complications from COVID-19 could jeopardize careers and future earnings, he said. NFL players do not have guaranteed contracts.

At the very least, players and coaches should seek out disability insurance policies that will protect against the virus, Darras said. He said there will likely be more and more virus-related exclusions written into policies in the near future.

MLB players designated as high-risk were able to opt out of the season while still receiving pay and service time credit, but other players also chose to opt out over concerns with the virus. At least one player, an Atlanta outfielder, reportedly reversed his decision Wednesday and is rejoining the team.

But in the NFL, which is set to kick off in September with teams similarly playing in home stadiums, several players have already said they will not play.

Furthermore, even though they may not have immediate legal claims against their team or league if they do contract the virus — since they would be deemed to have either assumed the risk or such claims would be preempted by workers compensation — the long-term effects of the virus are not yet known.

"Any team or league is concerned about legal liability by holding these games," said Denis Braham of Winstead PC, whose practice focuses on sports team venue management. "I think they are all worried about that, which is why they have given the players the option to opt out of the season as well."

Braham said he remains optimistic that MLB and other sports can resume so long as the leagues stick to protocols based on guidelines from the U.S. Centers for Disease Control and Prevention and other federal, state and local health officials, even if that means remaining prepared to pause or shut down seasons if an outbreak cannot be contained.

"I don't see any of the commissioners in any of the leagues blinking," Braham said. "At the same time, they are being cautious and are prepared to change direction if they have to. I think that is the best you can hope for."

MLB opted to hold games in teams' home stadiums rather than creating a "bubble" with players, coaches, team staff and others sequestered in one or two cities where all games are played.

The National Basketball Association and National Hockey League, which are restarting this week in bubbles, said their most recent rounds of tests showed no positive cases. Such a system has proved successful in limiting the spread of the virus for the National Women's Soccer League and Major League Soccer, which did have two teams withdraw before starting due to players testing positive.

MLB Commissioner Rob Manfred said Monday on MLB Network that the Marlins outbreak is not a "nightmare" situation for the league and that it has put in place "protocols" to deal with positive cases while continuing with the season. The Phillies said Thursday that no players on the team have tested positive so far.

However, it now appears that not all 30 teams will play a full, already shortened, 60-game schedule.

"It's likely too late for the MLB to make the change to a bubble environment, but reinforcing and modifying the current protocols will likely decrease the chance of another teamwide outbreak," Hanna said. "How the MLB reacts to the [current] outbreak will be illustrative of whether a return to play outside of a bubble environment is feasible and functional for an entire season."

--Editing by Brian Baresch.

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