In a period of twenty-four hours, the American sports landscape experienced something never before seen in history: a complete shutdown. Due to the unexpected and unprecedented spread of COVID-19, sports franchises began mass-cancelling games and tournaments. By the end of the day on March 12th, every sporting event in the United States had been cancelled—referred to by one player as “The worst day in sports history.”

Last week marked the first time in United States history that all sporting events were cancelled. Sports continued as normal during the World Wars. Even the deadly Spanish flu epidemic in 1918 did not invoke complete cancellation, as many major league baseball games continued with players and fans wearing masks. This is the first time the March Madness tournaments have been cancelled, and many are wondering if this will be the first Olympics cancellation since World War II. Not only do these historically unprecedented cancellations result in frustration, disappointment, and legitimate fear on the part of players, fans, arena staff, and the rest of the sports community—the cancellations also prompt a multitude of legal questions regarding civil litigation and contract enforcement.

One issue, though admittedly still hypothetical, is potential civil litigation brought by sports fans who attended games that occurred during the spread of COVID-19 but before the mandated cancellations. Because symptoms of Coronavirus may not appear until up to fourteen days after exposure, fans, players, or arena workers present at games held prior to March 12th could reasonably test positive for the virus sometime within the next week. The question is this: if a fan reports a positive test for COVID-19, could other fans present at that same game successfully sue the arena or sports league for negligence? In the wake of the novel coronavirus, many sports franchises asked themselves this same question. For example, in order to avoid this type of lawsuit, an NBA game, which was held on March 7th against the recommendation of public health officials, had signs posted to warn fans that they were entering at their own risk and could not hold the arena liable.

If a fan were to bring a lawsuit, it would likely be under a premises liability theory, which is the duty to ensure that patrons and guests are not exposed to unreasonable risk of harm that the owner knew or should have known about. There is some question here about whether an arena owes a duty to its patrons to protect them from something outside of its control like coronavirus. But, assuming that there is a duty and that the duty was breached by allowing fans to attend a game despite the increasing spread of the virus, the next question would be whether the franchise could successfully invoke an assumption of the risk defense. For any arena that posted warning signs, the defense would be that fans implicitly assumed the risk (as opposed to express assumption of the risk, which would require signed waivers) because they knew the dangers of coronavirus specifically from the warnings posted and more generally from the significant news coverage. Though one plaintiff would likely have a weak case here, a class action brought by every fan in an arena for emotional damage and/or lost wages due to the mandatory fourteen-day quarantine after exposure might result in a pretty hefty settlement.

Of course, this question remains hypothetical, as no fans attending one of these pre-cancellation games have yet reported to test positive for the virus. Though this question remains open, it is almost guaranteed that we will see an increase of this type of lawsuit in other contexts. One couple has already filed suit against the Grand Princess ship (and did so while still on board) for $1 million dollars in emotional damages—their complaint alleged the same type of premises liability theory as discussed above.

The second, and more pertinent, issue is contract enforceability. The mass cancellations raise a multitude of contractual questions: are salary contracts for professional players and staff still enforceable? Will fans receive refunds for games or TV packages purchased? Will cities contracted to host cancelled tournaments receive compensation for the money spent in preparation for hosting? Will TV companies contracted to televise tournaments be reimbursed? Will college seniors in cancelled winter and spring sports receive another year of eligibility?

Some of these questions have already been answered. The NCAA has announced that it will grant eligibility relief to spring college athletes, allowing them to compete another year in their cancelled sport. This raises several more questions, however, such as whether this will apply to NCAA athletes whose winter sports tournaments were cancelled (most notably, March Madness), whether schools will have to award scholarships to both repeating seniors and incoming freshmen, and how this will affect Title IX scholarship allocation requirements. The refund question has also largely been answered, as many ticketing companies have offered refunds for any cancelled sporting event, unless you had already resold your ticket.

In general, however, contractual duties will largely be excused due to coronavirus. This is because of something called the force majeure clause, also referred to as an “act of God” provision, which allows a party to default on its performance of the contract if circumstances beyond their control occur which make performance impossible. As exemplified here, these provisions include anything from natural disasters to acts of war or terrorism. Though there may be some contest if a specific contract’s clause does not include “epidemic” among the list, a court would likely find that the coronavirus pandemic falls among the “act of God” catch-all that is almost always included. Even if the contract does not contain a force majeure clause, parties could still likely default on their obligations due to the common law doctrine of impracticability (which functions very similarly). So what does this mean for a player or arena worker’s employment contract, a fan’s TV package purchase, or a TV company’s contract to televise a tournament? Likely none of those contracts are enforceable, and most will not be getting paid..

It is important to note that this is all very contract-specific. For example, NFL player salaries are determined by a collective bargaining agreement (“CBA”), so the question will be whether the new CBA, which was approved in the middle of the coronavirus shutdowns, contains a force majeure clause. We already know that the NBA’s CBA does contain a force majeure provision, but it is unclear whether owners intend to enforce the provision and reduce player salaries. Like ticketing companies, many arenas and teams may still choose to offer refunds and pay their employees (either out of compassion or fear of backlash), and NBA players have already started donating some of their salaries to support arena workers who are now out of work. As for contracts to host or televise tournaments, like CBS/Turner’s multibillion-dollar TV contract to televise March Madness, the up-front payment to the NCAA that currently sits in escrow may need to be refunded depending on the language of any force majeure provisions present in the agreement.

For the first time in sports history, we are about to learn what a world without sports looks like—including the legal ramifications of such a swift and sweeping shutdown.

Abigail Wood

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