Professor Michael McCann discusses the legal situation around sports leagues reopening after the COVID-19 shutdown, including the impact of league decisions, players unions, and venues. Produced and hosted by A. J. Kierstead.
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A. J. Kierstead (host):
Professor Michael McCann covers the legal situation around sports leagues reopening. This is the Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.UNH.edu.
A. J. Kierstead (host):
Opinions discussed are solely the opinion of the faculty or host who do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.
A. J. Kierstead (host):
So Mike, there'll be a lot of variability from league to league. Do you expect a lot of legal problems as leagues look to complete or scratch seasons in progress or planning for leagues that haven't even started yet to begin to open?
Michael McCann:
Yeah, so the leagues and the players associations, because they have a union management relationship, they can extinguish much of the potential legal fallout just by agreeing on what the terms of return are. And as we're seeing in baseball and in the NBA and we'll see in the NHL no doubt as well, these are complicated issues involving sharing of revenue, involving testing, involving quarantines. But the key is that if they agree on what to do, they can eliminate much of the fallout. Now we'll see, will there be another, there's another outbreak that causes a community to shut down. There are all sorts of variables that are hard to know, but one of the benefits of having this relationship is that they can really directly address things that would be harder in a relationship that most have where they're just an employee and there's an employer.
A. J. Kierstead (host):
And it seems like a lot of the leagues beginning to start out centers around the leagues first, and then it spreads to the players unions and then venues.
Michael McCann:
Yeah, that's right. So the leagues are basically proposing here's how we should come back. And the players associations are having an opportunity to weigh in and really more than an opportunity, they have to agree. I mean, this is truly bargaining. They both sides have to decide yeah, this is okay. And I would imagine, I think we're starting to see that there are members of the players' associations who are more concerned about coming back, given that this is still a virus that we don't really fully understand. And every day we're learning more information about how it's transmitted, but the leagues are hopeful that they can come up with the right testing that would allow some certainty. And I think we also just have to kind of face the reality that there's not going to be 100% safety. We have to accept that a player might test positive at some point. And the NBA has talked about not shutting down if that happens. If we shut down everything because somebody tests positive that creates zero margin for error. So obviously we don't want us to spread the virus through sports, but at the same time, I think that there's a middle ground to some of these sayings where it can't be that everything shuts down if one person test positive.
A. J. Kierstead (host):
I mean there's billions of dollars on the line. I mean, with all these different leagues, they literally, it's a country within the country with the amount of money that is drawn up, with the amount of travel that happens. So that there's so many parts that could cause problems as they go. I'd imagine liability is going to be a key factor that's going to need to be considered.
Michael McCann:
Yeah. And the leagues hope to extinguish that concern, at least with respect to players, by having the union agree to whatever terms they apply to. So if that were to happen, that should remove legal issues with players. Now that doesn't mean potential issues with staff or coaches that could come up, though my sense is that there won't be a tremendous legal fallout in terms of the people involved. I think if fans come back, we could see maybe some issues. But my sense is that initially the leagues would return without people in attendance.
A. J. Kierstead (host):
Are you seeing very much pushback from states or cities with regards to leagues starting to make plans?
Michael McCann:
Some of them are competing. Clearly in Florida, Arizona, there's a sense that they're trying to pitch themselves as open for business to sports, whereas other communities, California, for instance, I think that there's more hesitation towards opening the doors to sports and that will affect where games are played. If it turns out that only certain states will allow games, obviously the league can't have a full schedule as it was traditionally construed, where the Celtics traveled to Chicago and New York and Texas and other states to play games. It's going to be more fewer venues, how they decide what's a home game, they'll have to figure out. But my sense is that if assuming they come back, it's going to be in a confined space. It's not going to be national. It's going to be maybe an arena where there's housing nearby, where the players could be and staff and coaches could be quarantined to minimize the likelihood of either infection or spreading infection. And I think it sounds like Florida is a state that's really going to try to attract that kind of business.
A. J. Kierstead (host):
Preseason and workouts have been, I've seen a whole bunch of articles pop up regarding, is there a big concern where they want from the leagues, where they want everyone to start their team workouts and things like that at the same time, or is it going to be left to the teams to make those determinations?
Michael McCann:
So far, it is up to A, whether or not it's allowed in that community to have that kind of workout. As we know, all of the 50 states are coming up with their own policies in of gathering restrictions, in terms of activities. So the NBA and other leagues have said, look, it's the first threshold is it allowed within that jurisdiction? And then beyond that, teams are opening up, assuming it's allowed to allow individual player workouts, so not scrimmages or anything like that. I think we could see scrimmages over time. It does raise the issue of will that gives some teams an advantage if their players are able to work out in advance. And I think these are things that are just sort of unavoidable that we just have to kind of accept for that may benefit some teams over others and there's really not much can be done about it unless we just wait for every jurisdiction to allow that kind of activity. I think the leagues are thinking let's come up with standards that are enhanced safety, but also allow a resumption of activity in a way that minimizes risk.
A. J. Kierstead (host):
And this might be a pretty far out there sort of point but I mean, if cities or certain states decide not to try and open up or in a reasonable amount of time and speaking, was it LA said, if they need, want no coronavirus deaths over a span of two weeks before they consider reopening, which is unrealistic honestly, do you expect some teams to begin to see about moving to other jurisdictions?
Michael McCann:
What I think could happen is if say the NBA says we're going to just open up in Florida, in Orlando or something like that, where there might be an adequate facility and housing that that would evade the issues that you're identifying, that some communities are going to have standards that would not make it practical to resume play, or even activities. The way of addressing that, I think the league's perspective is let's avoid California says X and Illinois says Y, let's just have everyone in Orlando or whatever is the location so that everyone can get back together and start working out. Whether there's testing for that and all of the safety protocols, but you're right to point out that in some communities, it doesn't seem likely that they would be able to resume. But one way of addressing that is just to move everyone to one facility, to the extent that that's possible.
A. J. Kierstead (host):
And that wouldn't cause any problems necessarily when it comes to venues or contracts with cities or anything like that.
Michael McCann:
No it would. I mean, it's good to point out that it, obviously, if there's no games at Madison Square Garden, or if there are no games at other arenas that those venues would remain closed and the workers there wouldn't have employment and all of those issues would remain in play. I think unfortunately, a lot of the folks that work at arenas or ballparks and stadiums, they're going to be in a tough spot in terms of generating work. And a lot of those folks really are only paid when they perform labor. They're not paid a salary per se. So hopefully teams do everything they can to help them out. And I know some teams have done that. Some players have done that as well, but the plan of putting everyone in Orlando or something like that, that's not going to address the employment issue of a lot of people that really need to work hours.
A. J. Kierstead (host):
They'll make hard for the teams to go back if this happens over a very extended amount of time. I mean, if they got to lay off the workers, workers move, the economy in that area might not be as good as when they left.
Michael McCann:
Yeah, absolutely. I think this is an issue that goes beyond sports, where if the economy remains shutdown for a very long period, it will have economic effects. Obviously we have to balance safety and health. And hopefully over time, we come up with the right formula of reactivating the economy, so that unemployment doesn't skyrocket while at the same time maintaining health standards. And there are smart folks that can figure these things out and let's hope they do it.
A. J. Kierstead (host):
Thanks for listening to the Legal Impact presented by UNH Franklin Pierce School of Law. To help spread word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple podcasts, Google Play, and Spotify
