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Sports Law: COVID-19's Impact on Legal Issues in the Sports Industry

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Sports Law: COVID-19's Impact on Legal Issues in the Sports Industry

This course is designed to give the participant an insight into how the sports world has changed because of COVID-19. We will discuss the renewed focus on some legal terms involved in contracts and ways the practice of sports law and the sports business will change moving forward.

Presenters

Brandon Leopoldus
Founder
Leopoldus Law, APC

Transcript

Brandon Leopoldus: Welcome to Sports Law, COVID-19's impact on legal issues in the sports industry. I'm Brandon Leopoldus, the founder of Leopoldus Law, a sports and entertainment law firm based in Los Angeles, California. This course is designed to give you an insight into how the sports world has changed in light of COVID-19. The change in focus on some legal terms involved with contracts in the industry, and ways the practice of sports law and the sports business will change moving forward as a result of COVID-19.

It's important to keep in mind that there's a lot of information that is constantly changing with COVID-19. So, keep that in mind as you listen, where medical information will update as well as some of the liability issues will update throughout this. With the topic of COVID-19 that's ever evolving and we expect that to be similar for the next few years. Just like every other industry, COVID has not spared the sports business or sports law. At the time of this recording, there have been more than 41 million persons that have been diagnosed and more than 665,000 deaths attributed to COVID-19 in the United States alone.

In sports, many athletes have been stricken with COVID. And while some have not had significant issues from the virus, others have had COVID devastate their health and their careers and even put an end to their life. COVID has also disrupted the sports business, sports, in general, is not a work from home friendly type of an industry. However, sports has had to adapt and overcome some of the regulations that have been put in place by governments to combat the effect of COVID-19. There's been limitations on mass gatherings, which has caused massive revenue disparity from prior years. Some teams have been displaced for at least an entire season, if not longer. Some professional sports have entirely shut down. Collegiate high school and other amateur programs have been paused. And there have been a number of other business effects that goes without mention that often front office staffers, broadcasters, and all of those that make sports something enjoyable and watchable for those of us at least in the United States, they've also been stricken with this.

And so, it's been a worldwide collective effort on how we're going to overcome this. And sports has adapted to COVID. It developed some responses to COVID variants, some regulations that have been put in place, and public perception around sports has been better than almost every other industry. And that's because sports continued to adapt when other industries went on pause. We all remember the bubble with the NBA. But other leagues also put in a bubble protocol before the NBA did. There's been massive testing protocols to protect players, fans, officials, front office, the coaches and everybody involved. There had new roles to play in putting in implementations for fan and player safety for those in person events. And sports was one of the first industries to bring back large in-person events.

So, let's go back and take a look at what happened and how everything worked in real time at the beginning of COVID beginning in March of 2020. Sports really sounded the alarm and America followed. The NBA season was suspended on March 11th when Rudy Gobert tested positive and they suspended games that night. The NBA was very proactive. The following day, Major League Baseball canceled Major League Baseball spring training and sent everybody home.

The NFL significantly altered their offseason programs on March 15th. And that's when America really paused for a few moments. But during that pause, leagues, teams, other officials started to look, "How do we move forward out of this?" And they started talking over the phone, through Zoom as we've all become accustomed to now. And things started to take shape. Specifically, the NWSL, the Women's Soccer League, decided that they were going to implement the bubble model. This was followed by the WNBA, then the NBA. But the NWSL was the first league to really successfully put into place a bubble format. And that was the first starter where they took the chance, got everybody into one single location, they blocked everybody else out as best they could, required protective gear, they required people to stay within the bubble.

The WNBA did the same thing and the NBA did it. And it worked out tremendously where we didn't have any of these athletes test positive for COVID. Now, some of the basics on a bubble situation, if you were unaware of what happened, the league set a single location where all athletes would come in, the coaching staff and authorized personnel. They had testing requirements when they got there. Everybody quarantined for a given period of time, they tested again and nobody from the outside was allowed to come into the bubble. And once somebody left the bubble, they were out. They couldn't come back in outside of some very stringent testing protocols and very rare circumstance.

Now, you can imagine the issues that that entailed when you had players, coaches, staff that had to be fed, they needed medical work done, they needed equipment, they needed these things. Well, they had to come in from the outside. But what they did was they actually separated those shipments, the providers, all of the service personnel that helped keep the bubble alive. They had to go through rigorous testing protocols and masking and all of the stuff that we've become accustomed to, but that was very early. The other thing is that not all teams played, right, with the NBA bubble. We had a lot of teams that just weren't going to be invited to the bubble, mainly because the season had already begun.

It looked like the playoffs were developing. And so some teams were not invited to play in the bubble. It also kept the travel to a minimum and kept as many players safe as possible. We also had bubble-like situations. The Major League Baseball season started on July 23rd, normally it starts in April. But they also had offsite locations for minor league prospects who would eventually play in those major league games. And there were rigorous testing protocols and quarantine requirements. This included the Toronto Blue Jays who ended up playing in Buffalo, their Triple-A city. And so we had the major league team of 25 or 26 players working out and playing at their major league stadium.

And within that same town, those minor leaguers that "taxi squad" would play at an offsite location and they would be quarantined from those major league clubs until one of those players would be called up. That seemed to work pretty well for Major League Baseball.

The NHL had a similar model to Major League Baseball, where they had some offsite stuff. They quarantined in little mini bubbles and that seemed to work well. Or at least in order to get a very rocky season underway and completed. There were also other sports that shut down. One of those, the Women's Flat Track Roller Derby Association had perhaps the most innovative and forward thinking reopening plan in all the sports that was issued very early on by the WFTDA, I believe it was in July. And they looked at, when could we reasonably restart? They put that out to the world. And they received a lot of press and it was simply because they were innovative and forward thinking for their players' safety.

They set specific standards that involved input from everybody in the sport and it was a really great system that they put into place very early. On a larger scale, Minor League Baseball canceled their 2020 season. This also coincided with Major League Baseball taking over minor league operations and reducing the size of Minor League Baseball's affiliates by roughly 25%.

Amateur sports have had a wide response to COVID mainly because some places had larger impacts than others at different times. Some NCAA sports, for example, were able to be played. Football had a delayed start. But some sports come back until 2021. And that really depended on the school and the sport. For high school sports, football was one that became a spring sport for many. While other sports, again, didn't play or if they did, had a modified schedule, where some players chose to play and others didn't. Some school districts allowed some sports to play while others didn't. And some schools and some parents decided the fate of their sports for others.

Now, once the vaccine was rolled out, things began to change. First, collective bargaining at the professional level set some very rigorous standards very early on. Most encouraged their players to become vaccinated. This wasn't just coming from the league so they could play games. This was a joint venture with those players' associations, the NFL was one of those, the NBPA and the NBA was another one. And the encouragement of players to get vaccinated and get information was key to many sports reaching over 90% vaccination threshold early into September of 2021.

The NFL had different treatment of vaccinated and unvaccinated players to help encourage those vaccinations. Also, before the 2021 season, the NFL put the impetus on teams to get their players vaccinated that included some severe penalties. The 2020 season, the NFL was going through a pandemic where a lot of players were becoming infected, sometimes because they weren't following the protocols that the NFL had set up. In fact, the Denver Broncos had to play a 2020 season game without an actual quarterback. In fact, there's a practice squad wide receiver that took a majority of snaps at the quarterback position. And again, the Broncos ultimately lost.

But these COVID protocols were bargained with the NFLPA, the players union, to reach the agreement that teams who have COVID outbreaks in the 2021 season could result in a forfeit that would often be subject of controversy early on. But it was put in place for the long term safety of the NFL, the NFL PA and its members, teams and players. This stands in contrast to Major League Baseball, where the agreement between Major League Baseball and Major League Baseball Players Association is similar as it was to the start of the pandemic. There's been a lot of different approaches.

In fact, the NFL and the NBA have provided access to a vast number of medical professionals with the qualifications and experience in infectious disease to adequately address the questions of those athletes who have legitimate questions about the efficacy of a vaccine, the effectiveness of it, and what those side effects are of not just COVID, but of the vaccine that we've seen throughout society. In individual sports, remember, sports isn't just a team oriented endeavor, the International Tennis Federation, the ITF, has implemented detailed protocols for every level of the sport. Tennis ranges from the professionals at the top all the way down to those peewee beginners. And they have detailed protocols for every level.

Golf has been a little more lax with their vaccination requirements. The PGA Tour has notably had a number of outspoken critics of vaccines. We've had a number of players on the PGA Tour miss major events because they have tested positive for COVID despite the fact that the vaccine is out there. And the individual athlete model is a little different than the team model. If you don't play, you're not going to get paid, right? And so, for the individual athlete, they even have some more impetus to get that vaccine. And those individual sports are often leaving it up to those individual athletes a little bit more than the team sports do that have collective bargaining as part of their system.

All right. We've given the background on the COVID history and the timeline leading into today. And I think we all understand that evolution that we've gone through in the last year or two with COVID being a part of our lives now. So now, as lawyers, we need to understand the legal considerations involving COVID in the sports industry. So, let's start talking about some of those and put our lawyer hats on rather than our fan hats. First, in professional sports, we have some workplace safety issues, right? These are some issues where you have more than just players that have had collectively bargained their workplace safety issues. But you have the front office staff, you have the parking guys, right, you have the people working as vendors throughout the stadium, you have the cleanup crews, right, you have all of the landscapers and the groundskeepers that are working on the playing surface.

You have all of those people that could contract COVID, could pass COVID in the workplace. So, of course, workplace safety matters are going to come into place. They're requiring those employers to take some stringent measures to ensure workplace safety as much as possible. You also have some employment matters. As the pandemic started, a lot of people got laid off. And so, you have that issue going on, but also you have the unemployment claims, and that will continue on into the future. Now, one of those employment issues are vaccine mandates from the employer and what you are and are not allowed to do with those vaccine mandates.

What sort of exemptions do you have to give? What sort of reasonable accommodations might you have to give? Insurance is another big one, right? This is one of those once in a lifetime events that people often did not see as foreseeable before. However, that's going to be an interesting discussion in cases moving forward because event cancellation insurance, including pandemic coverage, was taken out by some sports organizations and events.

Wimbledon being perhaps the most widely reported event that had event cancellation insurance that covered pandemics. In fact, most other sport events had no such coverage. This included the 2020, now, 2021 Olympic Games. We also have some tort liability with COVID, right? Insurance claims, I think we're going to see a rise in those as we get out of this pandemic against employers and others with perceived deep pockets that people may try and come after them for some tort liability for not just workplace safety, but perhaps fan engagement and that type of thing.

And that brings us to fan safety, right? Are venues going to require masks? We've seen a lot of fights in the stands where people have just been pent up for a year or two. They're going to a ballpark, they're getting some alcohol in them. They're getting mouthy with one another. And we're seeing a lot of fan-on-fan violence at stadiums. We're seeing fans that are in vaccine only sections. We're seeing a lot of different things for fan safety. And I think that COVID's certainly going to play into that into the future and infectious diseases.

We also have some athlete issues, right? One of them is collective bargaining. What happens if the season isn't played? Do they get paid? Do they not get paid? How much do they get paid? When do they get paid? Are there going to be penalties for those who took all the necessary precautions and still tested positive? Third is what happens if there's a false test with COVID? It says that you tested positive, but you weren't positive, right? We see this with drug tests quite often. And so, sometimes we need to keep those things in mind as we go through these type of things.

We also have issues related to endorsements, especially now that COVID is a hot topic and people are talking about vaccines. They're talking about stuff they saw on the internet compared to what the research says. We're seeing all of these things. That also opens up opportunities for new endorsements, but also for those morality clauses contained in endorsement contracts that may be violated should somebody speak out against a vaccine or speak for vaccine. It could be very interesting as some of those athlete issues arise. Another one is going to be just what happens when an athlete gets sick? When they get COVID and they have a long term health effect.

While most professional athletes are young and for the most part healthy, just from sheer statistics, we know that some athletes are going to have some severe complications and have their careers ended, simply because they contracted COVID. We also see contract obligations being brought into things with the Olympic Games. That was a big one, right? You had billions and billions of dollars on the line. The Olympic Games got postponed from 2020 to 2021. And then, there was still a question on whether or not they would get played.

People often wonder why they played those games without fans. And it was honestly because the International Olympic Committee really had the say on whether or not those games were going to go on. And of course, if they put the games on, the International Olympic Committee would get their payments. It didn't matter about the host country. So, we have contract obligation issues with the Olympic Games, not just in Japan, but across the world. We have television obligations, right? So, not as many games were televised in the 2020 season. So, that will impact those contract obligations.

And those sponsors and endorsement contracts that the television and the broadcast media have, even with radio, we're going to see some issues, because sponsors often pay well in advance of the season for their spots. And if they don't get that certain number of spots, or they don't get in the assigned time period, there may be some consequences. Even with force majeure language in there, it's an ongoing relationship. So oftentimes, that will result in a renegotiation of contracts and some of those benefits.

We also have issues with season ticket holders. Who assumes the risk that those games are or are not going to get played? So, if I spent a bunch of money on Major League Soccer season tickets and I couldn't go to those games, because the local ordinances said that I was not permitted to be in a stadium. And they couldn't draw fans, but they were going to play those games on television. Does that roll over to the next year? Am I entitled to a refund? How does all of that work? Some of this was not covered in season ticket holder agreements. And so, those are being revamped. And those are often going to be some of those issues that are going to get discussed and litigated.

We're talking salaries for players and staff as a contract obligation that gets brought up into COVID. Because some players, although there is force majeure language in many collective bargaining agreements that discuss what the actual guarantee is for players and staff, sometimes it's not in a collective bargaining agreement. For staff in front office, often, they're at will, right? If you're selling season tickets for the Detroit Lions, it's very rare that you would have a two or three year contract. You're probably an at-will employee, which means you can be fired at any time for any reason. And so, even if they decided to let you go or they're going to defer your payments or they're going to do something different. The question is, are you going to have your job come back too, right?

And then, we look at the venues. You have contract obligations for the teams, for others that rent the stadium, for the monster truck bowl that happens once a year at the stadium, for the concerts, for all of the fun stuff that happened at these venues. All of those get brought into the contract obligation issue. And does force majeure language cover this? Does it not cover it? Is there a carve-out or isn't there? And what do those renegotiations look like?

We also take a look for legal considerations at the collegiate level. Negligence is going to be a big claim and a big issue for those of you working at the university level. Some required athletes to be on campus in order to participate in sports. But that meant that some athletes were on campus when nobody else was on campus. What about the enforcement of adequate precautions around COVID? Are coaches going to implement a mask mandated practice? Or if they did, was it enforced? What about the knowledge by a coach of a player with a pre-existing condition and nothing was done about it, right?

All issues here involving negligence. What about travel? What about negligence in travel when a team checks into a hotel and a player sees that there's some problems in the hotel, is anything done about it? What about at the visiting venue? All of those issues get brought up. And then, of course, what happens when there's an outbreak on a college campus. Even if players don't show symptoms if they're spreading that virus, could that come back on anybody within a university setting as a potential negligence claim? Of course, with college sports, we also talk about insurance just like we have before. And we talk about those contract obligations.

And one other area is just the logistics that go into putting on a game with or without fans. While we saw some college football get played in 2020 without fans, the logistics of putting on a college football game much less a college field hockey game or any swimming event, any sport, it takes a lot of logistics. It takes a lot of people, sometimes on site, sometimes not. But like we said at the beginning, sports is not a work from home type of business. Often, sports is something that requires people to be at a certain place at a certain time. And that's no different at the collegiate level, either.

Amateur sports also have a number of issues, especially contract issues, right? Because they have participation fees that often get paid in advance for those amateur athletes to participate on those travel teams. Even in YMCA, basketball, or youth athletic league football or park and rec baseball, there's deposits and other payments that get made. But also those teams and leagues have those venue rentals. And oftentimes that contracts at all three of these levels are often inadequate. They don't talk about the force majeure language and that money is often spent well in advance. So, recourse might not be practical and might not be possible. So those are always some issues.

But also with amateur sports, you have the same employment insurance considerations as well. There are other considerations that face athletes, teams and others in the sports space at all levels. One is of course privacy. We have issues regarding HIPAA laws and what we should talk about when somebody tests positive for COVID and how we contract trace and how we keep everybody in the loop and keep them safe, while still maintaining that privacy of somebody that may or may not have contracted COVID at your workplace or with the team, right?

You have the participation levels at every level of sport, because with participations down, generally, that means revenue is down. Especially the amateur levels, that's going to be a big issue. We're going to see a generation full of athletes, whether they are young or old, at this point, that have a year where they didn't play. And that may result in kids dropping out of, say, soccer and picking up another hobby. They may play more video games. They may do something else. But they may step aside from sports. We're also going to see some issues around the PPP loans and the EIDL grants that were made and the public backlash to that.

We saw a lot of teams and others that got some of that money that was available to the public and it wasn't understood why. So for example, Tom Brady and his TV 12 brand got a lot of money through that program. And there was some public backlash because, of course, we were able to figure out and find out who had received some of those PPP and EIDL tranches of money. We're going to look at some of the considerations also, the cost benefit analysis of participation of unvaccinated individuals. This comes from the team side. What's the cost benefit of having somebody in the locker room with, say, a Steph Curry, who is unvaccinated? Are they replaceable? Do you need the PR hit of having them on the team?

And maybe we want them, maybe we don't, maybe they're not even allowed to play in the home venue due to local ordinances. And so, maybe that player, just the cost benefit doesn't make sense for them to just play road games, or they're not able to practice, they're not able to do certain things. We might actually have to dump that now unvaccinated individual. We also have issues around those vaccine requirements for attendees. We're starting to see that a little bit. But what happens when, right? And what about those fraudulent vaccine cards? And how do we handle those situations? Are we going to put in a vaccine requirement?

And then of course, where does that end? And finally, those local and state regulations, while we can talk about theory as much as we want, those state and local regulations are really going to matter. What's happening in the San Francisco Bay Area is much different than what's happening in Dallas. What's happening in Chicago was very different than what's happening in Tuscaloosa. And the requirements in New York City and the surrounding areas is very different than say, for example, Miami. So, local and state regulations may cause some significant other issues, those legal issues, not to mention competitive balance considerations.

Now, one thing that I definitely want to go over and that we should keep in mind throughout all of this are some of the innovative solutions and tactics used during COVID. COVID was a time for innovation for some businesses, including in the sports space, and around COVID, some of these innovative solutions are going to lead to other ideas outside of sports. The first one that I like to point to is the roller derby's reopening guidelines. And that's through the WDFA. I have a link in my outline to provide you a link to their reopening guidelines. But they were very forward thinking, very reasonable, very thought provoking and very, very well thought out. I highly recommend taking a look at those, because those may be a model that you can use for your sports organization to prepare for the next pandemic, God forbid.

The second thing is, of course, the bubble model. I think we're going to see more bubbles come in the sports world in the future. Not just with pandemics but just as a marketing idea. The bubble model worked very well in at least three leagues, worked well in substantial number of other leagues that had a quasi-bubble or a modified bubble model. And the bubble in sports is going to be something that, I think, we're going to see a lot more of. We're also going to take a look at some of the innovative solutions that eSports did. eSports, of course, with it being digital was a little bit easier, they had a little less of an adjustment period than traditional terrestrial sports, right?

eSports was able to adjust fairly quickly, although there are some issues with how fast the technology was and speeds on the internet and all that good stuff. Those things became issues, however, eSports was able to continue on with their business model, even if they didn't have those large in-person events that you or your children may be big fans of. But eSports is certainly a business to watch, especially how they were able to continue to grow immensely throughout the COVID time period.

We're also going to take a look at how technology is going to be used. Some of the innovations that came in here was, it gave ticket providers and it gave those venues and teams the ability to eliminate physical tickets, right? That way, the traffic flow was a little bit faster, there were fewer items that were touched by multiple individuals. But they could also track, right? So, you're scanning the phone for the tickets. And they're also able to track where fans are within a stadium, what is being used and what's not being used? Then, they start to look at the data a little bit more.

Those teams and venues can start to reduce waiting times and work out how people are going to be moved in and out of those venues and spaces throughout their venues. And of course we had virtual attendees, right? The NBA, probably the most notable with the faces throughout the stance on digital video boards. And while it was a little creepy, it was also very innovative, because it provided another way to have some fan engagement for those lucky fans that were able to garner a seat in one of those virtual games simply by dealing with a sponsor.

And so, you're seeing some innovative approaches for COVID. And whether or not any of these stick around, they're certainly going to influence those in the future within the sports industry.

Now, before we get into what the post-COVID sports future is going to look like in light of COVID, I want to go over two scenarios that I personally had with clients during COVID. The first was early on in COVID, when I was working with a sports union and COVID had just hit and things were not looking good. And nobody really had answers, right? This was March of 2020. My take on things were, we need to get everybody home. We need to get everybody safe. We need to get everybody out of those congested environments and home where they can take care of themselves without the issues of hotels and short term rentals and travel and all of those things and being exposed to the virus outside of their home environment.

The discussions that we had on both sides were different. My co-counsels on this were a little more open to things where I was a shut it down type of a guy, we need to shut it down and figure things out. Now, as we started to have those discussions, it became, how do we reopen this? And my focus was on, how do we know that our members are going to be safe? How do we know that they're going to be taken care of? How do we know that there's going to be a hospital bed for them should they contract COVID while they're on the road? How do we know that those on the field with them are all going to be somehow protected or at least masked at that point?

And we didn't have good answers, right? The other side didn't have good answers. We didn't have good answers. It was a collaborative environment. However, it didn't seem like any of us had an answer for any of the good questions that both sides brought up. That was very difficult. As a lawyer, those are some difficult times. But when you can work with people on the opposite side of the table with you, as teammates, true teammates, in these type of situations, it goes a long way. So, keep that in mind as when you start working through into the future, take a look at where you started there.

Now, I use that experience to later on in 2021, working with a team that was trying to provide some reopening, trying to get some fans back in, trying to get their staff back into their actual offices on how we would do that. What additional precautions we needed, right? We took a look at the security protocols for the venue. Maybe we needed more cameras throughout the concourse so that way we could see what was going on. See if we had a congregation of people that we could have somebody go in and break up that congregation or make some other innovations to make sure that doesn't happen again.

We started to look at, what if we had a vaccine requirement? And what if we didn't? We started to take a look at, what does our insurance cover? And what doesn't it cover? We started to take a look at other things such as, what does the player's collective bargaining agreement say about vaccine mandates? Maybe we need to start chartering different kinds of planes. Maybe we need to require hotels to have certain type of air filters. And instead of just the sports stuff, where we were talking about endorsements and sponsorships and TV stuff, we were also now talking about building codes.

We're talking about health policy. We're talking about what is the local government and the state government and other governments going to do that may affect not just our team, but our players? And we also had to take a look at what those international players could and couldn't do. Could we get them into the country? Were they even allowed in the country from their home country? And so, there were a lot of issues there whereas the vaccine started to roll out, we had to take a look at what does the vaccine mandate look like? If somebody decides not to, do we keep them around? Do we not keep them around?

We had a lot of tough questions. But this is going to make the team better. It's certainly going to make me better as a lawyer. But it also helps us prognosticate out into the future for what happens the next time, when something similar or something quasi similar comes up. All right. So, let's talk about what the post-COVID sports future looks like. First, just as a disclaimer, we can't prognosticate everything. But this is a good look at what I think might be popping up. And I think these are pretty reasonable assumptions.

First, I do believe that venues are going to have a lot more precautions that they're going to take. They're going to increase ventilation for those indoor arenas, right? They're going to have a lot of different filters going on? They're going to have a lot of ventilation, where we have air going out and air coming in, even in those venues in cold weather environments. Those air filtration systems are going to be key. I think, we're going to start to see some of those become requirements for insurance policies. I think, new venues are going to have that indoor outdoor hybrid type of a setup that we've seen in some venues that have the outfield walls that open, right, that have the retractable roof.

I think we're going to see a lot more of those indoor outdoors type of venues with doors opening on the sides to get that crosswind and the ventilation through, regardless of whether COVID is around again or COVID is around for the next year or more. I think we're going to start to see venues built that way just as a result of COVID. I think we're going to start to see social distancing becoming a little bit more of the norm. I think we're going to see increased open spaces in venues. I think we're going to start to see higher ceilings, right?

We're going to have teams and venues focused on how the ingress, egress and fan movement throughout the game or throughout the event occur and how they maximize that to get people in and out as quickly as possible and as well as engage them as well. That's through food and merchandise delivery, probably going directly to the seats, so I can order a hot dog, I can order ice cold beer and have it delivered directly to me, rather than me going and standing in a line breathing on everybody else, and then breathing on me. Instead, I can bring it directly to my seat, pay with Apple Pay.

And so, nothing, it's a seamless transition where people aren't taking cards, they're not standing in line nearly as long and more transactions can occur while still providing those concession stand amenities. But also having those digital payments set up. We're going to start to see some venues that handle cash nearly as much. We're starting to see that already. And I think that's going to be something that just continues on into the future, at least as we start to talk about the precautions venues take. I also think we're going to see that increased reliance on technology, right?

Contract tracing leads to fan habit tracing as well, right? We're going to see that through some in-stadium apps. We're going to start seeing that through push notifications. So, for example, if I'm a season ticket holder of the Dallas Mavericks, perhaps, I'm going to have to download that app where that's where my ticket is. So when I get scanned into the stadium, it's following me around a little bit. And if it knows that I like the barbecue sandwich outside of Section 352, that when there's no line or a smaller line, it might send me a push notification that says I can get a sandwich very quickly upstairs, might as well go get one, right.

It might send me push notifications for when things are coming up during the game and those activations through sponsors. We're going to start to see some of that happen. We're going to see some staging, whereas they trace where you are and what your flow looks like, just the volume of people coming in and out of certain areas, that they redirect traffic at certain times by putting a temporary event, a temporary item, a temporary activation somewhere else in the venue to get people to head that way as well. We're going to have more and more contactless transactions like I talked about, ticketing being one of them.

At this year's Major League Baseball All Star game in Denver, all tickets, all tickets were digital. Of course, that was on the heels of the All Star game being moved from Atlanta. But that gave Major League Baseball and the Colorado Rockies the opportunity to not have to wait for the printing of tickets. Instead, they were delivered directly to mobile devices and they were able to speed up the time getting into the venue that way. You're also going to have that Apple Pay and the Google Pay set up. And credit card transactions with the tap availability with many of those debit and credit cards now. We're going to see contactless transactions much more.

And of course, the focus is going to be on responsiveness and data, right? What we're looking at from the team and venue side is if somebody wants something, how quickly we can deliver that to them. So, we eliminate that time where they decide to do something else, their attention goes somewhere else, and they don't buy something. But also that data is going to tell those teams in those venues where they should put things and what they can put in places to make a better fan experience and have more fan engagement.

The third thing that we're looking at is increased precautions for player health and safety. Not just the ventilation at the venue that they play, but also near the playing surface as well as at the practice facilities. How much space they have, say, within a locker room, within the hallways, underneath the stadium and who's allowed on the sideline, or who's allowed near players while they're at work. We're going to start taking a look at masking and isolation, not just related to COVID. But when somebody is ill, oftentimes, we see the flu breaks out in the NFL at some point. We see Major League Baseball where teams are stricken with colds for weeks on end, because of course nobody's masking up, right, nobody's isolating.

And I think we're going to start to see more and more of that. I think we're going to see that when a player gets diagnosed with the flu, they're probably not going to be playing anymore. They're probably going to take a backseat unless they're a premier player. But that player may sit out three, four or five games. And what we have now is we have a list for players that have COVID as like an injury list, almost like an injured reserve type of a list. I think that might be something coming in to stay a little bit more than what we think it would be. So that way, we don't have as much transmissible disease throughout sports, because we're going to see that throughout our society.

I think we're also going to start to see some travel restrictions and other protections for player health and safety, right? Some of those protections, I think, are going to be internal with different teams. We're going to have that collectively bargain for sure. But also, you're going to see that with collegiate athletes and even some amateur leagues, where they're going to have certain standards for those hotels, for those airlines and all of those things.

The fourth thing is I think we're going to see a push to the bubble when it's needed, right? I think a bubble is going to be a great marketing idea for some amateur travel ball teams as that happens throughout sports. Whatever it is, I think, those that are going to label the bubble are going to make some good money off of that. But I also think that when the next pandemic, and I say the next one, because we've had them before, COVID just seems to be one that was a little more transmissible. These are going to happen again in the future. And now that we have that bubble format that is proven to be very successful, we may end up pushing to a bubble when needed a little more often than what we would like.

But we might see the bubble format for things like spring training. We might see that a little bit more for the NBA Summer League. We may see that for training camps. Those type of things where the bubble may provide some additional advantages even outside of just the health stuff. We're also going to see some legal changes, right? There's going to be an increased focus and negotiations surrounding force majeure language. That I can speak from experience on this, when COVID hit and we all started checking those force majeure provisions that many of us didn't spend enough time on prior, boy, some force majeure language is good, some of it missed the mark completely on this and in some contracts didn't even exist.

So force majeure language is going to be something that's big. And it's going to be something that overtakes the sports world where this might be something that we negotiate for years and years and years and it never comes in. But the cautionary tale of 2019 is going to come in or of 2020 is going to come in. We're going to see that with broadcasters, especially because they've been impacted, right? You didn't have the vast library of content and live content to show those sports games for quite some time. So, broadcasters lost a lot of money.

They're going to have added force majeure language into those contracts. We're going to see that with venues as well, not just with the venue rentals between the teams and the venue owners if they're different, but we're also going to see that between the venues, those sub-tenants, right? So the concerts, the tractor pulls, all of the community events that happen. But also with those venues about the number of games you have to play in a venue, what those all look like. And then, of course, what happens, what is a force mature?

Is a pandemic going to be considered that? Because I think it could end up being a carve-out of many contracts. And that carve-out for pandemic will outline some of these things. We're also going to see that force majeure language change in collective bargaining. Of course, Major League Baseball had some pretty notable back and forth in the newspaper or in the news about how much players were going to get paid and how much they were guaranteed to pay and how much they weren't going to get paid throughout this, because the force majeure language probably just wasn't as detailed enough as it could be.

And as we go into the next round of collective bargaining in every sport, I think we're going to start to see some collective bargaining language about force majeure and about what happens if, especially as it comes to the pandemic, right? Collective bargaining is going to be one of those things where we talk about the pay, we talk about work stoppages and what is and isn't included in those. We're going to start talking about the notice period for cancellation, as well as resumption of play, right? Cancellation, they may only have to give a certain number of days under a certain number of categories, right?

The NBA certainly blew the whistle very quickly on COVID. And that seemed to be okay given the circumstances. But in terms of resumption of play, it would be hard for the NBA or any other league to tell their players, "You need to be in game shape in two weeks." Because as we've seen, some players were able to do that, because they had millions of dollars, they were able to have their own home gyms and they had sometimes better home gyms than they did the facility. Whereas those rookies or those rookie-free agents who were still living with mom and dad, because they hadn't been paid yet. They had to work out at the local park, and that was even shut down. So they're doing push-ups and sit-ups in their childhood bedroom and how can they be at that same level? So we may have some notice periods that get addressed and detailed and fleshed out a little bit more in collective bargaining agreements.

We're also going to start taking a look at what are those procedures for a shutdown? And what are those procedures for transportation to get those athletes back to where they need to be in the event of a force majeure situation, right? So, what are those procedures when the league and the union agree that, "Hey, the shutdown is happening and it's 72 hours from now." What does that shutdown look like? What do players need to do in order to have their transportation set up so that way they can get back across the country in order to shelter in place, right? What does that look like? What are the limits on that? And what does everything look like there?

Of course, you're also going to have the conversation of what about the guaranteed pay for suspension of play? We're also going to see what that looks like for the sports officials, right? If that is their job, and it is outside of their control, if their employer, the league, says, "We're not playing anymore," what are these officials supposed to do? We're going to have a lot of these conversations for what sort of pay people get during a force majeure situation. And of course, we're going to talk about health coverage for union members because what happens when somebody gets COVID? Is that going to be a lifetime thing? We don't know yet. We don't really understand some of the long term effects for somebody that had COVID 20 years ago, right? COVID is just here so we need to understand what some of that is going to look like into the future.

We're also going to talk a lot more in the future about the legal side of liability management for workplace safety claims. It's not just COVID, right? COVID is part of it. But what about in future infectious diseases? We're not talking just the flu, we're talking about those things that we haven't seen yet. We're talking about all of those infectious diseases that come across. Are there work from home possibilities for some people? Are there not work from home possibilities? If they can work from home, what about those privacy issues, right? The work issued laptop, what happens when that gets hacked? What happens when your home router isn't as secure as the work internet? And a computer hacker gets all of the information for the Washington football team.

And now, the trade secrets are out there. What happens there? So, work from home isn't just a worker benefit, there's also some very practical legal considerations that have to be considered. We're also going to have a massive amount of changes to insurance policies and premiums. Perhaps, we start to see dynamic pricing, right? Where some areas of the country, of course, they're doing this a little bit, but it could be that dynamic pricing is going to surge and become a little bit more real time rather than it is right now where it moves a little bit slower.

We're going to see those coverage changes. We're going to have a lot more exclusions, especially on that business and corporate side. We're going to start to see some of that happen. We're also going to see some creative plaintiffs' attorneys trying to shoehorn in claims into the coverage changes, right? We're going to see those things happen all the time, where you're going to have good plaintiffs' attorneys figure out how some of these infectious disease claims could go into an insurance policy and how they may be claimed. I do think that as we go through this, not just in sports, but in general, we're going to have plaintiffs' attorneys really testing the limits of what that's going to look like as it relates to COVID.

And of course, that's going to create some situations in life and disability coverage. Will COVID be one of those famed pre-existing conditions? We're going to see a lot of those things. So, now that we've looked at some of the possibilities for the future, it's important to keep in mind the differences between the sports world and the way we personally look at COVID and how it's affected our lives.

In sports, a very topical, very right now type of an industry because it is a live event industry, instead of complaining about it, analyzing what had happened, what the rules should have been back in the day and all of those type of things, sports is a little bit more dynamic. And that the industry looks at what it is allowed to do, what it can do, and what it needs to do in order to put those events in place and on television.

One thing we did not cover during this program was UFC's Fight Island, where they brought fighters for UFC events that were televised into a bubble type of an environment. And they fought there where sometimes they had fans, sometimes they did not. But they pushed the envelope a little bit more than some of the other leagues. We're going to see that into the future as well, not just with COVID, but also other business opportunities. Remember, when something works once, it's often going to get replicated. So, that means we're going to see that bubble format replicated. We're going to see the ticketless entries replicated. We're going to see a lot of different things that we've seen in COVID that were just there to get us by, put into place and become some standard things, not just in COVID times but well after this pandemic is behind us.

We're also going to see some of those efficacy issues where we're dealing with vaccine mandates, those are probably going to have some legal clearances in the future with collective bargaining agreements, with participation in youth sports and collegiate sports and other health-related measures that are brought into the fold to possibly be a little more protective than they are pre-COVID. These are things we need to keep in mind. And while some may complain about it, others may be champions for these type of precautions that are going to be taken.

It's important to remember that sports requires that their athletes, their coaches and other participants, are in top physical condition at all times. And that those things need to be protected along with the safety of fans. Because when fans are in a venue, they are generating revenue for the stadium, for the team, for the league and for all of the participants involved that go into making game day so special. We also need to consider what things are going to be on the horizon that don't exist right now. Data tracking on players has been an issue that we've been discussing in the sports law world for years.

Whether it's tracking software to see how many steps or how many miles or how fast an athlete is going, those type of things that track injuries. And we have some health data and the issues around the privacy there. We're also going to see that with recovery time periods for sicknesses, not just with COVID, but also other illnesses so that they can have a more direct look to see maybe players in Denver recover at a faster or slower rate than those in Cleveland. We're going to need to take a look at all of those things and see how those are going to play into the sports business world into the future.

Another important thing to keep in mind as we prognosticate into the future of what sports is going to look like is taking those things from other industries that you might work in and apply them into the sports world. The sports business is no different than any other type of business and that it needs to make money to survive. And so, some things that were effective in some other areas of business will be applied into the sports world. It's just a matter of how they shoehorn those type of things in there.

We're often going to see the load in and load out procedures for stadiums, for teams at their local venues and working with the teamsters and other unions to figure out what the safety precautions around the load and unload out might actually be. We're going to see differences in security systems, on site security staffing. We're going to see the cleanliness of often used facilities increase, right? We're going to see bathrooms and other facilities that are high touch environments become low touch environments in order to maintain the health and safety and the perceived health and safety of those visiting stadiums, venues and other places where sports are played from amateur levels all the way through the professional levels.

We're also going to start to see more engagement with the second screen type of technologies that we've started to become accustomed during COVID. We have now Monday Night Football and alternative broadcasts with the Manning brothers. We're going to start to see more and more of that, I believe, as we have a generation that's often looking at an iPad or a phone while they may have the game on in the background. They need to engage their fans on these televised events. And I think we're going to see more and more opportunities for teams, leagues and sponsors to be able to capitalize on the direction that our society is going with second screen technologies and opportunities to connect with those that want to get involved with the games.

We've covered a lot today. We rehashed all of the timeline with COVID and how it applied in sports from the day the NBA shut down through today. We took a look at all of the things that went into the bubble and how those technologies and those ideas developed. We talked about the legal considerations involving COVID and sports, not just at that professional level, but also in amateur sports. We took a look at some of the innovative solutions and tactics used during COVID. And we also tried to prognosticate and use our crystal ball to determine what some of the post COVID sports future is going to look like.

This is an exciting time period to be working in sports and in sports law. And I hope you get the chance to work with sports clients as well and bring some of those ideas that you have had and that you've implemented in other types of industries into the sports world moving forward.

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1h 1m 28s

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