This brief article explores some of the legal issues that may arise in the era of COVID-19 when restrictions are eased and participation in contact sports resumes in schools and amateur sports leagues. More specifically, this article addresses what obligations, if any, schools and amateur sports leagues might have to reduce the risk of transmission of COVID-19, and similar communicable diseases, and how to limit potential liability for this new risk inherent in contact sports.
Contact sports require just that – physical contact. By the very nature of these sports, players must share common space, resulting in an abnormal amount of touching and breathing in close proximity. The reality is that if this type of physical contact was no longer permitted, many sports could not be played. Therefore, the COVID-19 pandemic raises unique questions with respect to whether transmission of this emerging disease will become an inherent risk of playing contact sports and how these sports can safely proceed knowing that many healthy young people are asymptomatic.
It’s easy to see why a professional sports league, particularly one followed around the world, would be motivated to get up and running as soon as possible: by example, it is estimated that the National Basketball Association alone has lost combined gate revenues between $350 million to $450 million. Meanwhile, the motivation for schools and amateur sports leagues is entirely different, with a primary focus on the health and safety of their participants. According to the National Federation of State High School Associations, the number of participants in high school sports in 2017-2018 reached an all-time high of 7,980,886. Further, according to a recent report by the Sports & Fitness Industry Association and Aspen Institute, over 56% of children ages 6-12 years old play team sports and 38% on a regular basis. The potential rate of transmission of COVID-19 at the amateur sports level could be staggering, and if liability for an outbreak is not fully considered, we could be in for a host of new lawsuits in the arena of amateur sports.
Assumption of the Risk
In California, the doctrine of primary assumption of risk “precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them.” Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 257. By “choosing to participate, individuals assume that level of risk inherent in the sport.” Shin v. Ahn (2007) 42 Cal.4th 482, 486; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297. As a matter of policy, a duty should not be imposed where doing so “would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.” Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004. Although schools and sports leagues generally have no legal duty to eliminate (or protect a participant against) risks inherent in the sport itself, it is well established that they have a duty to not increase the risks above those inherent in the sport. Knight v. Jewett (1992) 3 Cal.4th 296, 313.
The risks typically associated with contact sports might include an elbow to the shoulder while grabbing a rebound during a basketball game, a helmet to helmet hit during a football game, or a slide tackle to the ankle during a soccer match. However, today, participants in contact sports face a new form of risk with the spread of COVID-19, which may present future litigation. According to the Centers for Disease Control and Prevention, COVID-19 is a novel and extremely contagious disease thought to spread mainly between people who are in close contact with one another. Prior to the COVID-19 outbreak, more than 2.6 million children ages 0-19 years old were already treated in the emergency department each year for sports and recreation-related injuries. While individual sports such as golf, tennis, gymnastics and track and field may be able to more safely distance players from one another to prevent rapid transmission of the disease, the same cannot be true for contact sports where players repeatedly touch one another, breathe on one another, and share the same equipment, most of the time without ever cleaning it. Naturally, it follows that a sports practice or game presents ample opportunity for the transmission of the disease.
If COVID-19 transmission is considered a risk inherent in a sport, many questions will now have to be considered by schools and amateur sports leagues such as: What preventative measures, if any, does a school or sports league need to implement to not increase that risk? How can a school or sports league limit person-to-person contact in certain sports without abandoning an integral part of the sport? Should players be required to wear face coverings and gloves at all times? Should there be a rule requiring that all baseballs, footballs and basketballs, etc. be cleaned thoroughly with disinfectants after a certain period of time or replaced altogether? Should schools and sports leagues be required to test players before participation to ensure that no one is infected? Are coaches going to have to change the way that they set up practices to allow players to be at a safe distance from one another?
Waivers and Releases of Liability
An initial step that can be taken by schools and amateur sports leagues to attempt to limit potential liability is to include appropriate language in any waiver or release of liability forms to cover “risks of illness to include communicable diseases such as influenza, COVID-19 and other contagious diseases, spread from person-to-person contact”. Prior to a new season beginning, schools and amateur sports leagues often require all participants to sign waiver forms, which include assumption of risk provisions. These forms serve to expressly release the liability of the school or sports league for those risks inherent in the sport. “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. ... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 796.
To be effective, the release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. In determining a waiver’s scope, “California courts require a high degree of clarity and specificity in a Release in order to find that it relieves a party from liability for its own negligence.” Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488. Any ambiguity in the scope will be construed against the drafter. Cal. Civ. Code § 1654. As currently written, many waivers may not sufficiently account for the risks associated with COVID-19. Thus, waivers should be revised to explicitly include that one’s participation in the sport could increase the risk of contracting COVID-19. By doing so, a school or sports league can demonstrate that the risk was voluntarily and expressly accepted.
In the coming months, we will surely see whether it will be viable for schools and amateur sports leagues to conduct practices and games how they have been played in the past or if rule changes will need to be implemented. Either way, schools and amateur sports leagues should follow the guidance issued by the CDC, state and local health officials to keep facilities and equipment properly cleaned and disinfected to prevent the possibility of COVID-19 outbreaks in communities. There is no question that participation in sports for children and young adults will be an important part of the recovery efforts to promote a healthy lifestyle moving forward, but formulating a strategy to defend against the potential liability arising from the spread COVID-19 will be just as important.