Law360 (November 16, 2020, 2:50 PM EST) --
With hot-topic issues like how to manage COVID-19, the tightening of rules on immigration, and the public support for better equality, diversity, and inclusion in the workplace being ever present during the presidential campaigns, it's likely these same themes will influence the start of his administration.
Already enmeshed in many of these issues, here is how the sports industry will likely continue to be impacted by these themes.
As the coronavirus pandemic continues to worsen, many anticipate that a Democratic administration could take a nationwide approach to handling the pandemic. Federal mandates may include lockdowns, social distancing requirements and travel restrictions, which would further limit live sports, especially in states that are currently permitting audiences to attend games.
Live sporting events are vital revenue generators for the sports industry, including leagues, organizational bodies, broadcasters, sports betting firms, events firms, ticket vendors, retail suppliers, and hospitality providers, among others. If live sports are further limited, sports organizations will likely be faced with a corresponding decrease in employees, games, sponsorship and overall revenue.
The Biden administration could also impose stricter health and safety requirements, which would need to be implemented by sports organizations with respect to their players and coaches, as well as their corporate, retail and other employees.
Retail, in particular, may continue to be significantly disrupted by stricter health and safety restrictions, as we have seen throughout this pandemic. Sports organizations may need to reevaluate their social distancing plans and screening protocols — both for employees and for members of the public who interact with employees at their workplace — and revise their policies on monitoring COVID-19 tests.
Finally, more stringent COVID-19 protocols may also be problematic for sports-related travel, particularly for attendees, staff and athletes who normally travel extensively to attend competitions or events. This could be further complicated by potentially stricter quarantine requirements, which may prevent travel on short notice and affect scheduling of games.
Organizations and athletes will need to factor in extra time to address these issues, and will need to stay updated on quarantine and travel restrictions.
Despite potentially more onerous travel requirements at a national level, Biden is also expected to roll back some of the Trump administration's more restrictive policies on immigration. This could increase the number of visas awarded for employment-based immigration and may make it easier for foreign players, coaches, and staff to travel and obtain visas to live and work in the U.S.
There has been a renewed focus on equality, diversity and inclusion in the workplace, particularly in light of the Black Lives Matter movement in the U.S. Many sports organizations have been front and center in this movement, and have made significant commitments to increase their diverse employee populations and create more inclusive workplaces.
On the heels of these efforts, in September President Donald Trump issued an executive order prohibiting "divisive concepts" in workplace diversity trainings. Since the order was issued, the Office of Federal Contract Compliance Programs sent letters to several companies indicating that their commitment to significantly increase the number of Black managers and employees could violate federal affirmative action laws.
By contrast, diversity and inclusion initiatives were integral to several of Biden's campaign platforms, and he has indicated that racial justice will be an important part of his agenda in office. According to the Biden campaign website, the Biden administration will reissue and mandate compliance with a 2011 executive order to promote diversity and inclusion in the federal workforce. It is also expected that Biden will seek to withdraw Trump's recent executive order.
This change in leadership may give momentum to the country's renewed focus on diversity and inclusion. Employers may also expect greater enforcement of laws targeting systemic discrimination and increased workplace discrimination and harassment complaints.
Accordingly, sports organizations, like other employers, should consider reviewing their investigation, hiring, retention, and termination policies and practices for implicit bias, and implementing internal programs (e.g., diversity and inclusion councils, affinity groups, training) to create a more diverse, inclusive, and equitable workplace.
During his campaign, Biden promised to improve economic security for women by fighting for equal pay, and it is expected that his administration will aim to strengthen federal equal pay laws. This could have a significant impact on the sports industry, which in recent years has seen an increase in litigation and publicity related to equal pay, including with respect to women's basketball, hockey, and soccer.
Sports organizations should therefore evaluate their equal pay practices, including by conducting audits, to ensure that they are compliant with federal and state laws.
Elizabeth Polido is an associate at Morgan Lewis & Bockius LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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