The potential legal risks of recommencing professional sport in a pandemic ravaged world

13 May 2020

As Australia begins to lift lockdown restrictions, attention has turned to the question of when professional and communal sport will be permitted to return, including the resumption of the AFL and NRL competitions.

However, an email from the English Premier League Doctors Group has shed light on the potential legal issues associated with lifting restrictions over professional and communal sport.

Background

On 5 May 2020, sports website The Athletic published an email from the Premier League Doctors Group (PLDG) that sought "urgent answers" over "multiple COVID-19 concerns" that had allegedly not been addressed in relation to the proposed resumption of the English Premier League football competition in England.1 The issues that had not been addressed included:

  • "Approving guidelines that still carry risk of death";
  • "Liability, insurance and testing for players, staff and their families";
  • "Possible transmission via sweat and goalkeeper gloves";
  • "Suspicions that some clubs are already ignoring guidelines"; and
  • "Ability of emergency services to attend training ground incidents".

Of course, there are a multitude of financial incentives for the English Premier League competition to resume, including ensuring clubs receive the majority of funds owed to them under the Premier League's lucrative television rights deal.

There are also benefits to national morale in having professional sporting competitions such as the Premier League resume, even in empty stadiums. Admittedly, no football fan is excited at the prospect of an empty neutral stadium playing host to Liverpool finally lifting the Premier League trophy for the first time, nor fans missing the farewell of a raft of famous players due to retire such as David Silva, arguably the greatest midfielder in Premier League history. But the argument from politicians, commentators and sporting administrators is that sport in empty stadiums is preferable to no sport at all, and would still play a vital role in lifting national morale.

However, the PLDG seems adamant that these benefits do not outweigh the risks it has outlined and that the Premier League should not resume until the risks it has identified have been addressed. Indeed, the PLDG's predicted risks appear to have already come to fruition, after Germany's plans for competitive football to resume on 16 May 2020 were derailed by two players from Dynamo Dresden testing positive to COVID-19, meaning their entire squad was placed into a two-week quarantine.

Implications for professional sport in Australia

The points raised by the PLDG are likely to be of concern to those responsible for deciding when professional sporting competitions return in Australia.

Firstly, the fact that coronavirus has been suppressed, but not eliminated, means that any guidelines that are approved for the AFL, NRL and other competitions are necessarily ones that do carry what the PLDG email describes as a "risk of death". The concerns raised by the PLDG certainly put decision makers responsible for the return of the English Premier League on notice about the risks outlined in the email, and it seems likely that sports doctors in Australia would be providing similar advice to the AFL, NRL and administrators of other professional competitions about similar risks.

Additionally, the issue of liability and insurance for players, families and staff is also of particular relevance in Australia.

It is unclear if existing insurance arrangements would provide cover in circumstances where the effects of COVID-19 are widely known, and there are clear and obvious risks with resuming sporting competitions before the virus has been eliminated in Australia or a vaccine becomes available.

In circumstances where competitions such as the AFL and NRL are keen to resume prior to elimination or the availability of a vaccine, then it may be that existing legal and insurance arrangements need to be reviewed and amended to provide comfort to players and their families. These would include:

  • personal accident cover and income protection insurance for professional athletes;
  • public liability insurance for sporting bodies such as the AFL and NRL, professional clubs and also venues that ultimately host competitive fixtures; and
  • professional indemnity insurance and directors and officers liability insurance for directors of sporting bodies, professional clubs and host venues.\

The possible transmission via sweat, showing the highly contagious nature COVID-19, is likely to also be of considerable concern. In circumstances where the AFL has recently reversed its position of using quarantine hubs to allow the season to resume, the potential transmission amongst AFL players is a risk that cannot be dismissed lightly. This is especially the case where the resumption of the AFL and other competitions will coincide with the lifting of restrictions generally (albeit with social distancing measures in place), meaning an outbreak amongst AFL players could lead to an increased transmission rate in the wider community.

The risk of clubs ignoring the guidelines has already become apparent in Australia, with players from the Adelaide Crows being investigated for breaching quarantine rules to only train in pairs.

Unsurprisingly, AFL CEO Gillon McLachlan appears to have come down hard on clubs and players over potential COVID-19 protocol breaches, reportedly threatening season-long suspensions as punishment for failing to follow the rules. It would seem that similar measures would be adopted in other professional sporting competitions.

Although Australia's healthcare system has not been overwhelmed like other countries, there remain concerns about the ability of Australia's emergency services staff to assist in relation to training ground and match day incidents while COVID-19 continues to spread amongst the community, even at a reduced rate of infection. This may be a particular problem if professional sporting competitions end up occurring in quarantined hubs, especially where those hubs are in regional and remote locations where there is often a shortage of medical facilities.

In light of the risks outlined, there is a serious prospect that professional athletes may have potential claims against sporting bodies and clubs in the event they contract COVID-19 while playing professional sport in circumstances where there is still transmission of COVID-19 occurring in the community. The risks to professional athletes are now widely publicised and it would be difficult to argue that such risks could not be foreseen or anticipated.

Implications for communal sport in Australia

It would seem that the resumption of communal sport will occur later than the resumption of professional sport, and communal sporting bodies and organisations will have the advantage of learning from the successes and failures of the measures ultimately introduced by professional sporting competitions.

However, the decision makers responsible for determining when communal sport can resume will still be concerned about approving guidelines for their respective competitions, particularly where there will not be the same level of scrutiny, testing and potentially quarantining in comparison with professional sporting competitions.

On the insurance front, they will also be wary of the fact that participants in communal sport are unlikely to have the same level of cover as professional athletes, which may create liability issues if it can be established that a person contracted COVID-19 as a result of participating in a communal sporting competition.

Additionally, it would seem that transmission would be a greater risk for communal sport, where the lack of professional support means that risk factors, such as sweat from goalkeeper gloves and sharing equipment are necessarily amplified.

One way around the risks may be to require all participants in communal sport to be tested for COVID-19 within a prescribed timeframe prior to playing. However, given the difficulty of testing and questions about its accuracy, it would seem that such a risk mitigation strategy would considerably delay the timeframe for the return of communal sport in Australia.

Conclusion

The question that professional sporting leagues may have to decide is whether the benefits of resuming sport in (probably) empty stadiums outweigh the risks detailed above.

While the return of professional and communal sport will undoubtedly lift the morale of Australians, the PLDG letter outlines that there are clearly a number of legal risks that will need to be addressed before such sporting competitions can resume.

Directors of professional sporting bodies, clubs and host venues should carefully consider their existing insurance arrangements to determine what cover may be available in the event of COVID-19 transmission occurring as a result of any decision by them to resume or assist with the resumption of professional sporting competitions. Similarly, those involved at the communal level should also be wary of any return while there is still a transmission rate in the community.

Sadly, COVID-19 has made even decisions such as the resumption of professional sport incredibly complicated and imbued with significant legal risk.

This publication is part of our insight series COVID-19: Navigating the implications for business in Australia and beyond. To get notified by email when new COVID-19 insights are released, please subscribe for updates here.

1 David Ornstein, The Athletic, Exclusive: Club medics query safety of Premier League return in 100-point email, 5 May 2020. See also Oliver Dawnay, TalkSport, Premier League doctors concerned over football's resumption and fearing for own liability if player contracts coronavirus, 6 May 2020.

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