By Zachary Zagger

Law360 (October 2, 2020, 5:24 PM EDT) -- As professional sports leagues push ahead with play amid the COVID-19 pandemic despite uncertainty about the long-term health effects of contracting the virus, attorneys say a cautious approach to handling the virus could help avoid the type of mass legal claims that followed the NFL's concussion crisis.

The leagues have all put in place myriad protocols and precautions to protect players and team staff from contracting COVID-19, which has killed more than 207,000 Americans. Even then, there have been some small outbreaks in both Major League Baseball and more recently in the NFL that have caused games to be postponed.

Those outbreaks come as the long-term health risks of contracting COVID-19 remain unknown. The U.S. Centers for Disease Control and Prevention said in September it is looking closely at heart conditions associated with COVID-19 including myocarditis, a type of inflammation. The CDC warned that such risks are not limited to older and middle-aged adults but could affect young people, "including athletes."

Players with potential legal claims against teams or leagues may be limited to whatever remedies are available under their collective bargaining agreements, at least for addressing the immediate effects of contracting the virus, as they would with other injuries.

But with the potential for longer-term or permanent complications, could the leagues someday face injury or mass tort litigation akin to the concussion cases?

"No, with the proviso that the leagues keep up with the cutting edge research, inform the unions and players immediately of new developments in peer-reviewed research, and intentionally take all new necessary precautions recommended by CDC, [National Institutes of Health] and the like," said Gary Wolensky, a shareholder at Buchalter PC who handles brain injury and helmet cases. "As all sports leagues learn sooner or later, there is nothing more important than participant safety."

Attorneys say the pandemic is different in several important respects from the NFL concussion crisis, in which former players alleged the league knew about long-term dangers of repeated head trauma — including the risk of developing degenerative brain conditions like dementia and chronic traumatic encephalopathy, better known as CTE — but didn't properly warn players.

Before a judge could rule on the merits, the NFL agreed to settle those claims on a class basis in 2015. The deal has enabled former players who suffer from a range of degenerative brain conditions to seek settlement awards from an uncapped fund that is expected to pay out more than $1 billion total.

An ideal COVID-19 claim for permanent injury would look a little different, said mass tort litigator Timothy O'Brien of Levin Papantonio Thomas Mitchell Rafferty & Proctor PA.

Such a claim would involve a player who abided by the rules but came into contact with the disease at practice or in the locker room of a team where an outbreak clearly occurred, and where the team did not follow the preventative procedures it reasonably should have taken or told players it was taking. The player would also have to show some permanent manifestations, such as reduced pulmonary capacity or reduced cardiovascular function, that made them unable to play.

"I think what [the leagues] have done is that they set the precautions to keep playing," O'Brien said. "I think the question will always be, 'Did the team stick to those policies and procedures?'"

After a long stoppage earlier this year due to the virus, professional sports leagues have been playing for the past couple of months, but under differing formats and circumstances. The NHL and NBA used so-called bubbles, with all teams in one or two contained locations.

No players who cleared quarantine and entered the NBA and NHL bubbles tested positive for COVID-19 with frequent testing, though both leagues brought a reduced number of teams into those bubbles, a number that declined as teams were knocked out of the playoffs. The NHL completed its playoffs and awarded the Stanley Cup to the Tampa Bay Lightning on Sept. 28 with zero positives in the 33,394 tests the league administered to 52-member team traveling parties since the league resumed play on July 26.

Major League Baseball played a significantly shortened season in home markets in empty stadiums and had to postpone some games due to a handful of outbreaks, but is using a bubble-like format for the final three rounds of the postseason with games being held in neutral locations instead of traveling between teams' home markets. Major League Soccer has taken a hybrid approach, starting with a tournament in a bubble in Orlando and then going back to playing in home markets in the U.S.

The NFL is facing its first major disruption since having to cancel its preseason, as it was forced to indefinitely postpone Sunday's matchup between the Pittsburgh Steelers and Tennessee Titans after several Titans players and staff tested positive for the virus.

While the season is still in its early stages, the league's actions suggest it is working aggressively to prevent more serious outbreaks, even fining five head coaches and their teams a total of $1.7 million for not wearing required masks during games.

"The bubble has been a success, but also the NFL and MLB have shown that games can be held at all stadiums safely," Wolensky said, calling the protocols "robust" aside from the Titans outbreak.

One key to returning to play: the leagues have generally given players the option to opt out, though not playing a year could affect a player's career. In MLB, for example, players designated as high-risk were able to opt out of the season while still receiving pay and service time credit.

"From a liability management perspective, that was the smartest thing they did because they can always come back and say 'you knew we were in a situation, you knew we had these rules in place and we could not guarantee an antiseptic environment, and we provided you the opportunity to opt out but you played anyway,'" O'Brien said. "Then it always falls to the question of whether the policies and procedures were adhered to. If not, that is when the liability opens up."

Beyond players being informed of risks or the risks being completely unforeseen, attorneys say the biggest legal hurdle — as with any claim tied to COVID-19 more broadly — would be proving how or where someone contracted the virus.

MLB and NFL players have been traveling around the country to play games while living in their home markets. Practically speaking, there is only so much the leagues can do to quarantine players. Even with the NHL and NBA bubbles, the disease might be brought in on the surface of objects or in some other way.

"You can't just test person B and trace it back to person A," said sports attorney Angela de Cespedes of Saul Ewing Arnstein & Lehr LLP, who handles complex tort and commercial litigation. "Unless somebody has been in a plastic bubble without any exposure to outside influence whatsoever for two or three weeks leading up to the fact that they contracted the virus and you can trace it back to an interaction with one person with the virus or one item that was contaminated, there is no real way to prove how someone contracted the virus."

"From a legal perspective, a liability perspective, there is a proof issue there," de Cespedes added.

If there is some breach of protocol or if the leagues and teams were ignoring their own rules, players who contract the virus could have a case. But so far, aside from some individual breaches, there have been no mass outbreaks traceable to specific people or conduct.

"My sentiment is that the leagues have been doing a pretty amazing job in working together with the CDC and with their respective teams to set up protocols and precautions to make it as safe of an environment as humanly possible," de Cespedes said. "I think everyone is trying to use common sense, practical problem solving to make everyone happy and keep play going."

--Editing by Brian Baresch.

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