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Will there be any live sporting events in the United States before the contemplated start of the preseason for the National Football League? That would mean games being played prior to August. The continued spread of coronavirus and increase in deaths has made it difficult for anyone to predict when there will be a return of sports, and one man may be looked at for guidance for a return to some normalcy.
Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, is of the opinion that the only way professional sports will be played in the summer or fall of 2020 is without fans in attendance and by keeping players in hotels. It is simply Fauci’s recommendation, as he has no authority outside of his research center, but he does have 50 years of public health experience, he has been tapped by President Donald Trump to assist with the coronavirus crisis, and he has advised every president since Ronald Reagan.
Basically, much of America has put its trust in Fauci.
“Have [the players] tested every single week and make sure they don’t wind up infecting each other or their family, and just let them play the season out,” said Fauci during an interview on the subject of allowing games to be played again.
During his April 16 press conference, Trump also indicated his belief that many sports leagues will start up again without fans and that there will be “made for television” sporting events. That press conference included the unveiling of a three-phase plan for states to reopen, which provides conditions under which sporting venues could reopen in the first phase, after a jurisdiction is able to demonstrate a downward trajectory of documented coronavirus cases within a fourteen-day period or a downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests).
Trump said that some jurisdictions will meet the criteria for the first phase as early as today. Fauci doubled down on his prior commentary and reiterated that sports will only return in summer 2020 if nobody comes to the stadium. He indicated that it is conceivable that an audience be in the stands once a jurisdiction gets to the third phase, but it will likely be a while before that happens across cities that host sports franchises.
There is an urgency to open up the economy to live sporting events, even if it means that games will not be played in front of fans for quite some time. This issue is playing itself out front and center in Florida.
Florida Governor Ron DeSantis and the State of Florida Division of Emergency Management have labeled professional sports as “essential services.” An April 9 memorandum says that those providing such essential services include “Employees at a professional sports and media production with a national audience — including any athletes, entertainers, production team, executive team, media team and any others necessary to facilitate including services supporting such production — only if the location is closed to the general public.”
By classifying sporting events as “essential,” DeSantis has opened the door to sports returning as soon as now with the caveat that no fans be allowed to attend. DeSantis seeks to bring the WWE, NASCAR, and professional golf events to Florida sooner rather than later in an effort to bolster the state’s economy, but appears to have recognized Fauci’s position that fans must come back much later in the reopening process.
“I understand you’re not going to fill up Daytona Speedway right now,” DeSantis said. “I’m not suggesting you do, but I think if there’s content that can be created, I think that that’s a good thing. Even Dr. Fauci said, televised sports is a positive thing.”
DeSantis’ closing line makes it even more abundantly clear how much Fauci’s words mean for the future of sport in the United States.
Various sports properties have much more aggressively announced their intentions to return, without fans for the time being, in close proximity to Dr. Fauci’s recommendations. The PGA TOUR has put a placeholder of June 11 as the date that it will return, without fans, with its Charles Schwab Invitational scheduled to take place in Fort Worth, Texas. Major League Soccer has recently targeted the second week of June for its return. The NFL is reportedly considering holding games in empty or partially filled stadiums and expects that it will begin to feel pressure from the federal government to do what it can to provide Americans with live sporting events.
If everyone is relying on Fauci for guidance on when live sports should resume, then will sports leagues and teams be inviting enhanced exposure should they allow fans to return to their seats in advance of Fauci officially changing course on his views and before a jurisdiction can prove that it has satisfied the conditions of the third phase of the newly introduced reopening plan? In a litigious society, it is not far-fetched to imagine a potential plaintiff using Fauci’s recommendation that games be played without fans in attendance if spectators are rushed back to stadiums and some contract coronavirus.
Certainly teams and leagues would be able to use defenses such as that the fans assumed the clear risk of attending the sporting events, and it is likely that, no matter when fans are allowed to return, special coronavirus-related waivers of liability will either be added to the tickets or be required to be signed by fans before they are allowed to view the matches. Furthermore, it will be very difficult for a plaintiff to prove that the virus was contracted at the game as opposed to in another venue.
As my colleague Jeff Fannell, president of Jeff Fannell & Associates, pointed out, “the spectator attends the game on his or her own accord and will claim the league was negligent? By deciding to attend, the spectator assumed the risk … a risk the spectator was aware of by virtue of the very statement made by [Dr.] Fauci the spectator would rely upon in making the claim!”
Yet, defending against this type of lawsuit is not something that sports teams and leagues even want to have as a concern. Furthermore, there is significant revenue to be earned even when forfeiting monies that would otherwise be received from ticket sales, concession items, and parking. Thus, it is more likely than not that every word uttered by Fauci on the subject will have great influence on how and when live sports will be returning. For now, it looks like it will be a couple of months before organized sporting events make a return, without any fans cheering on the athletes.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.
Jordan Rothman is a partner of 
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
