Sports COVID-19 Shutdown A Smart Move, Despite Defenses

By Emily Field
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Law360 (March 12, 2020, 10:22 PM EDT) -- Major sports leagues like the NBA are making the right call and avoiding potential liability by shutting down now that the World Health Organization has declared the coronavirus outbreak a pandemic, even though they had strong defenses already against claims that someone contracted the disease at a game. 

As the COVID-19 outbreak spreads, there is still a lot that is unknown about the disease, including how it is transmitted from person to person, attorneys said. The fact that major sports leagues, including the NHL and MLB, are putting their operations on hold right now shows there is a lot of uncertainty over how to respond to the outbreak.

"Sports at the end of the day are very enjoyable, but in light of the facts, it's OK and responsible for us to postpone some of our recreational activities for the safety and well-being of our fellow citizens," said Daniel Birnbaum, a labor and employment attorney at Seyfarth Shaw LLP.

Other major entertainment venues, like the Metropolitan Museum of Art in New York and Broadway theaters, have also closed their doors due to the pandemic, which has sickened more than 130,000 people worldwide and killed nearly 5,000. New York Gov. Andrew Cuomo also banned gatherings of more than 500 people in the state and declared a state of emergency Thursday.

Princess Cruise Lines Ltd. has already been hit with a lawsuit over the coronavirus, which claims the cruise line should have taken more precautions to prevent an outbreak and should have learned from a previous outbreak on the ship.

Given the rapidly evolving nature of the pandemic, canceling or postponing games and other mass gatherings is the responsible thing to do, attorneys said.

"If a team goes ahead and holds an event despite most major sports shutting down, that shows that a team or league was not acting reasonably in the light of the circumstances," said Edward Schauder, head of Phillips Nizer LLP's sports law practice.

However, if sports teams and other major venues are hit with suits alleging that someone contracted COVID-19 at a game or an event, they will still be able to argue that people assumed the risk of becoming infected by attending, given that it's widely known that the virus is highly contagious, attorneys said.

Sport leagues already have disclaimers in place that people assume the risk of getting hit by a stray ball or hockey puck when they attend games, Birnbaum noted.

Carla Varriale-Barker, head of Segal McCambridge Singer & Mahoney Ltd.'s sports law and hospitality group, said she expects more suits like the one against Princess Cruise Lines to be filed over the pandemic.

In those suits, it will be a question of whether plaintiffs can establish, based on the information known, that it would have been the exercise of reasonable care to discontinue an activity like a cruise, Varriale-Barker said.

Attorneys stressed that what is known about the virus, including how it is transmitted, and responses to the pandemic are changing rapidly.

"It literally is happening on a moment-by-moment basis," Schauder said.

According to the Centers for Disease Control as of March 4, the virus is thought to spread mainly among people who are within 6 feet of each other and through droplets in the air when a person coughs or sneezes. It's also possible that someone can contract the illness by touching a surface that has the virus on it and then touching their face, but that currently isn't the main way it is thought to be transmitted, according to the CDC.

"COVID-19 is a new disease and we are still learning how it spreads, the severity of illness it causes, and to what extent it may spread in the United States," the CDC said on its website.

The uncertainty around how the disease spreads may likely make it harder for plaintiffs to argue that they contracted coronavirus at a specific event, attorneys said.

"I think linking causation to the entrance to the venue to the contraction of the virus is one potential argument [for venue operators]," Varriale-Barker said. "I think this will be largely predicated on arguments about causation and how you can pinpoint where the individual contracted it."

Also by suspending games after Utah Jazz player Rudy Gobert tested positive for COVID-19, NBA Commissioner Adam Silver mitigated the risk of lawsuits over coronavirus exposure "almost completely," Schauder added.

Gobert had mocked coronavirus fears on Monday by touching reporters' microphones at a news conference and tested positive Wednesday evening. He posted an apology Thursday on Twitter, saying that he had no idea at the time he was infected and that he acted carelessly.

"If someone catches it, I would suspect that there might be a lawsuit against him," Schauder said. "He had no business touching mics anyway."

In the meantime, attorneys recommended that organizations keep close tabs on what the CDC and public health authorities are saying.

"This is changing on a day-to-day basis and companies need to assess what they're doing daily," Birnbaum said.

--Editing by Breda Lund and Emily Kokoll.

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