One of the chief priorities of youth sports organizations is the health and safety of their athletes. The current outbreak of COVID-19 has created unprecedented challenges to maintaining this priority, particularly when the narrative changes so frequently on what is necessary to keep safe. While it is impossible to eliminate all risk of transmission of COVID-19 in youth sports, a “keeping these organizations closed until an effective vaccine is widely available” policy is not economically sustainable or reasonable. Apart from the debilitating financial impact this would have on youth sports, research has consistently shown there are great benefits to children who participate in athletics, including lessons in healthy living, self-esteem, discipline, teamwork, and good sportsmanship. The loss of these benefits could have significant impact on the physical and mental well-being of young athletes.
While most people who contract COVID-19 are either asymptomatic or have mild cases, people of all ages have suffered severe symptoms, some resulting in permanent disability or death. When this occurs, the desire to lay blame and seek compensatory loss increases, and with that, the risk of legal action to businesses, including youth sports organizations. Decisions these organizations make today to prevent the transmission of COVID-19, thus, carry with them the risk of significant legal liability.
The best solution for youth sports organizations is to learn to manage the risks in re-opening their programs. Managing these risks well will also lessen the risk of legal liability. Below are some steps these organizations can take to manage risk:
- FOLLOW ALL APPLICABLE LAWS FOR RE-OPENING
One of the most important ways a youth sports organization can reduce its risk of COVID-19 liability is to follow all applicable laws and regulations governing the resumption of youth sports during the COVID-19 pandemic. If an organization is later sued for negligence or even gross negligence, failure to follow the law will, at best, be damaging evidence of negligence, and in some states may create automatic liability.
Determining how to comply with the law has proven more challenging for youth sports than some other industries. While the CDC has outlined a series of considerations for the resumption of youth sports, they are only meant to supplement state and local law. Organizations must then look to their state and county governments for more concrete directives, many of which can also be confusing. In California, youth sports camps could resume operation on June 12th if they did not provide a “competitive” component, which is the criterion the state has decided separates a “camp” from a “sport.” Guidance from the state on reopening the youth sports industry had not yet been released. Similarly, in New York, “low risk” youth sports will be allowed to resume on July 6th but only in those areas that have entered phase three of reopening. Only six sports are considered low risk by the state: baseball, softball, gymnastics, crew, cross country, and field hockey.
Inconsistencies not only between the states, but sometimes within regions of a state, make reopening more challenging for youth sports, particularly those that travel and compete outside of their local area.
- ASSESS YOUR ORGANIZATION’S RISK
There are many sources to consult for managing the risk of COVID-19. The Center for Disease Control (CDC) has identified multiple levels of risk in youth sporting activities, as well as steps that might be taken to mitigate risk. States also typically require social distancing, face covering, signage, staffing, training, and disinfection method protocols to reduce the risk of COVID-transmission. Yet, how to implement these must necessarily vary by sport, and sometimes by facility. For instance, sports that use shared equipment and gear will need to ensure that it is thoroughly cleaned and disinfected between use. This will obviously be different when the shared equipment is a soccer ball than when it is a pool.
In drafting policies and procedures for re-opening, organizations should look to their national and state sports associations or governing bodies for guidance. These bodies have often invested considerable thought and effort in developing ways to mitigate risk in their respective sports. Little League International has an extensive library of COVID-19 resources on its website, including a Best Practices Guide and Season Resumption Guide, and has highlighted three return to play plans created by local leagues for others to use as examples. Organizations such as the American Youth Soccer Organization (AYSO) and USA Gymnastics have provided similar guidance for resuming activities; however, they are primarily encouraging organizations to adhere to their state and local directives when reopening.
Youth sports organizations should also consult with peer groups. Should one be sued for negligence or gross negligence, the plaintiff would need to show, among other things, that the organization’s conduct fell below or grossly below a reasonable standard of care. One way to do this is to compare the conduct of the organization sued to national or state association standards or policies implemented by peer groups. The organization’s choice to implement less rigorous standards or policies may well be an important factor the jury considers in deciding its liability.
- CONSIDER HIRING AN EXPERT
Some organizations may have other issues to take into consideration that are not addressed by their national or state sport associations or are different than their peers. In these circumstances, it may be best to retain the services of a credentialed expert. There are a variety of experts that can be consulted when COVID-19 transmission is a potential issue. For example, if an organization utilizes an indoor facility, such as a gym or a weight room, it can hire a certified industrial hygienist to evaluate the space, including the equipment used, its ventilation systems, and other transmission concerns. The hygienist can then help establish best practices to prevent the transmission of COVID-19.
The retention of an expert can also offer an organization legal protection. If an organization is later challenged about their decision, it will have the ability to say that it sought and followed expert advice. Peer organizations may also want to share in the cost to hire an expert to evaluate safety practices for their sport, and then for all those organizations to adopt the resulting standards. This coordinated effort can also assist in limiting an organization’s liability.
- FOLLOW YOUR OWN RULES AND PROCEDURES
Once an organization has created policies and procedures related to COVID-19, it is important to follow them. As an example, if a gym informs its parents that their children will be socially distanced but does not enforce this policy and allows the children to congregate, the gym could end up in litigation if a child ends up contracting COVID-19. If the gym’s policies and procedures are produced as part of discovery in the resulting litigation and parents testify that the gym did not follow its own rules on social distancing, a jury may consider this compelling evidence as to negligence.
Organizations should also document compliance with their own policies and procedures. One way to accomplish this is to create a daily schedule or checklist of COVID-19 tasks (i.e, space and equipment cleaning, filling sanitizer/soap dispensers, social distancing reminders, and mask use), and ask responsible coaches and staff to sign off on these as they are completed throughout each day. Generating contemporaneous documentation like this shows that an organization didn’t just create best practices and policies, but that it took daily steps to ensure that they were followed.
Policies and procedures may need to change over time. What is known about COVID-19 is evolving quickly and the guidance that an organization develops today may become outdated, insufficient, or impractical tomorrow. If any change to an organization’s COVID-19 policy or procedure is made, the reasoning behind the change should be documented and retained. Widespread notification of changes should be communicated to athletes and their families to show compliance with evolving scientific and industry standards.
- MAINTAINING STRONG COMMUNICATION
Clear and direct communication with parents and athletes has always been important. Organizations are already accustomed to providing warnings about the dangers inherent in youth sports and it is important to be equally as up front about the risks of COVID-19 transmission. It is critical not over-promise or guarantee cleanliness and safety related to COVID-19.
Programs should consider drafting liability waivers that specifically notify parents and athletes of the risks inherent in undertaking youth sports during a pandemic and, that while the provider has practices in place to reduce the risk of COVID-19 transmission, there can be no guarantee transmission will not occur. These waivers should be signed by parents, who acknowledge and accept this risk before their child(ren) can participate. Whether the liability waiver will be effective in court will depend on how it is written and where it is sought to be enforced. It is strongly suggested that organizations seek legal counsel to assist in preparing these documents.
Organizations should also be prepared to notify local health officials, coaches, employees, and athletes’ families of any COVID-19 transmission within its facilities if it occurs. This must be done carefully, consistent with state and local law and in compliance with the American Disabilities Act. Organizations should also work legal counsel to prepare compliant notification documents.
- DON’T FORGET OTHER SAFETY RULES OR SAFE SPORT
It is important that rules developed to address COVID-19 not infringe on other sports safety protocols. For example, SafeSport rules were developed to prevent athlete abuse and promote transparency in training and practices. While barring parents from attending practices might reduce the likelihood of transmitting COVID-19, it also infringes on SafeSport guidelines. Organizations will need to find a way to accommodate both concerns, such as limiting the number of adults attending practices and making sure parents adhere to social distancing policies.
We live in a litigious society where some might seek to lay blame or recover for the injury or loss of a loved one due to COVID-19 complications. Plaintiffs’ lawyers will look for any basis to sue an organization, whether it be for failure to comply with applicable laws, failure to meet industry safety standards, failure to warn, failure to test, lack of adequate staffing, or inadequate training of employees or staff. Therefore, it is important for youth sports organizations to take strong steps to mitigate the risk of liability.
CMBG3 Law can provide advice on how to manage your organization’s risk of liability and can advocate on your organization or peer group’s behalf. Our team closely follows judicial, statutory, and regulatory developments related to the COVID-19 pandemic. For more detailed information, please contact Bryna Misiura or Kyla Capistron.
Bryna Rosen Misiura, Esq.