The suspension of NBA games due to the coronavirus will bring about a fallout that goes far beyond the games themselves.
It was only a matter of time before the
outbreak of the coronavirus disease triggered a very consequential impact on American sports. That impact occurred Wednesday night when the NBA—the third highest-grossing sports league in the world—announced that it was indefinitely suspending the 2019-20 season.The suspension began following the conclusion of Wednesday night’s games. The league had been exploring the possibility of playing games without live audiences, a game environment already compelled by several states and municipalities that have banned large public gatherings. The NBA’s position abruptly shifted when a player on the Utah Jazz—center Rudy Gobert, according to The Athletic's Shams Charania—preliminarily tested positive for COVID-19.
The test result surfaced shortly before the Jazz were set to tip-off against the Oklahoma City Thunder at Chesapeake Energy Arena. The player who tested positive wasn’t in the arena. It’s unknown when this player was most recently near his teammates, coaches and staff or referees, fans and journalists. That is an important piece of unknown information. Although it appears many persons who contract COVID-19 show symptoms, including a dry cough and shortness of breath, within a few days, some don’t experience symptoms for up to a couple of weeks. This means an ostensibly healthy person could unintentionally infect others (however, according to Yale Medicine, early indications are that an infected person is more contagious while he or she is symptomatic).
Players on both teams were told to leave the court before the game started and to return to their locker rooms. The game was cancelled and the players were quarantined. It’s expected the players were tested or will be tested as soon as possible. Coaches and staff presumably will undergo the same tests. There are reports that the Jazz will stay overnight in OKC’s Chesapeake Energy Arena until they are cleared to leave.
NBA’s likely rationales for suspending the season: health and law
The NBA’s decision to suspend the season was essential for at least a couple of reasons.
First, the fact that a player tested positive means that the league’s system of health has been compromised. For that reason, the public’s health could be jeopardized if games continued to be played. It’s possible the Jazz player who tested positive has already infected teammates, coaches, staff, opposing teams’ players and coaches, referees, fans and media—not to mention his family, friends and neighbors.
Remember, symptoms can take several days to appear. Over the last week, the Jazz played games on Monday (at home against the Toronto Raptors); last Saturday (away at the Detroit Pistons); last Friday (away at the Boston Celtics); and last Wednesday (away at the New York Knicks). Gobert started and played more than 30 minutes in all of those games. Like all organizations, the NBA has an ethical obligation to avoid steps that could worsen the pandemic.
Second, the league has a legal duty to refrain from actions that could be deemed negligent. NBA teams, along with the NBA itself and the companies that operate arenas, have obligations to reasonably ensure the safety of their facilities and their guests. Generally speaking, spectators in athletic facilities must be kept safe from hazards that aren’t open and obvious.
Courts are often unwilling to impose liability for spectator injuries at sporting events, in part because game tickets tend to disclaim liability and in part because spectators are presumed to accept that there are risks inherent in a sport. For instance, if you buy courtside tickets to an NBA game, you implicitly assume the risk of a player unintentionally making contact with you if he dives for a loose ball or runs out of bounds. If you aren’t comfortable with that risk, save some money and buy a seat further back.
The risk of contracting coronavirus is a completely different story. That type of risk has nothing to do with the sport of basketball and presumably wasn’t foreseeable when a spectator bought his or her game ticket. A team might nonetheless insist that the waiver language is so broadly worded that it ought to cover contraction of an infectious virus. Consider the Philadelphia 76ers’ game tickets and their disclaimer language:
THE HOLDER OF THIS TICKET VOLUNTARILY ASSUMES ALL RISK AND DANGER of personal injury (including death) and all hazards arising from, or related in any way to, the Event, whether occurring prior to, during, or after the Event, howsoever caused and whether by negligence or otherwise.
It's possible this type of language, particularly the phrase “related in any way”, would cover a fan or journalist who contracts the virus from a player (or coach). A judge, however, might disagree. After all, the risk of the virus has nothing to do with the game of basketball. Plus, an ordinary fan would probably expect that if the league knew a player had COVID-19, the league would take dramatic measures in response. In other words, if the NBA and a team knew that a player was infected and yet proceeded to play games, the league and that team could become vulnerable to a lawsuit that it acted negligently.
It goes without saying that the risk of litigation is far less important than the public health risk detailed above. Litigation is about whether one party has to pay the other money. Public health is about people’s life and death.
Six impacts of a suspended season
The suspension of NBA games will bring about a fallout that goes far beyond the games themselves. This fallout is not nearly as important as public health considerations. Yet it will impact the lives of people and their families. Consider the following six impacts.
1) The league could elect to stop paying players but that seems unlikely to happen in the short-term
With exhibits, the collective bargaining agreement between the NBA and the National Basketball Players’ Association is nearly 600 pages long. Tucked at the top of page 468 is language from Article XXXIX, which is titled “Termination by the NBA/Force Majeure.” I detailed force majeure in an NBA story from a few days ago. It refers to so-called “acts of God,” such as a natural disaster and other kinds of extraordinary and uncontrollable circumstances, and the contractual impacts of such an event.
Article XXXIX details the circumstances that would make it impossible for the NBA to perform its contractual obligations. Chemical warfare, terrorism and tornadoes are among the many circumstances listed. “Epidemics” is also listed. The necessary elements or circumstances for an “epidemic” to exist isn’t defined in Article XXXIX. However, Merriam-Webster defines this word as “an outbreak of disease that spreads quickly and affects many individuals at the same time.” The NBA could contend that COVID-19 qualifies as an epidemic and teams can withhold pay for games missed.
The NBA seems unlikely to resort to Article XXXIX, especially if the suspended term doesn’t last for many months. The league has a positive relationship with the NBPA and it knows that players aren’t at fault for this health crisis. Teams also presumably want players to continue to practice and workout and feel a part of the organization. However, if the suspended term goes on for a while, the NBA might be inclined to revisit the question of pay.
2) Arena workers, game day operations and others stand to lose hourly wages
Arena workers tend to be employed on a part-time and seasonal basis. This generally means their earnings are contingent upon whether they’re needed to service events. If they aren’t needed, they aren’t paid. The cancellation of NBA games, along with the cancellation of conferences, conferences and other entertainment events, almost certainly means these workers’ wages will plummet. State laws vary on under which conditions part-time workers can collect unemployment benefits. None of this is good news for dance team members, security officers, janitors, ushers, box office staff, lightening and production technicians, cashiers, cooks, concession stand workers and parking garage attendants, or the family members who depend on their earnings. One hopeful sign: Dallas Mavericks owner Mark Cuban has told media he’ll find ways of helping displaced arena workers. We’ll see if other owners do the same.
3) Businesses nearby NBA arenas will lose sales and could lay off staff
A number of businesses “move” to be next to a sports arena under the logic that there will be significant foot traffic in and out of the arena for games. Sports bars, restaurants and apparel stores are among those businesses. Taxicab and ridesharing drivers also pick-up game business. Those businesses and workers all stand to lose from the cancellation of games.
4) Sponsors and network partners will check their contracts
NBA teams, sponsors and networks generally enjoy positive and lasting relationships. They will likely reach resolutions on how the suspension of games impacts sponsorship contracts and broadcast deals. The current public health predicament is aberrant and not permanent. Things will eventually return to normal and NBA games will resume. Sponsors and broadcasters don’t want to jeopardize long-term relationships over what will likely be a short-term drop in revenue.
That said, many millions of dollars will be lost while NBA games are suspended. One party or perhaps multiple parties to a sponsorship or broadcast contract will need to absorb that loss. Sponsors’ advertisements won’t be shown and broadcasts (and accompanying commercials) won’t be aired. These contracts likely contemplate the consequences of suspended games. What’s less clear is whether those clauses contemplate the circumstance of a pandemic.
If a sponsor or network is unable to reach an agreement with a team, their contracts might contain a force majeure clause. It would relieve the parties to a contract from having to continue to make payments or perform obligations. A sponsor or a network could insist it shouldn’t have to pay when the games aren’t being played due to a pandemic.
5) Loss of revenue will lower basketball related income and impact salary cap
As detailed in their CBA, the NBA and the NBPA have negotiated an even split of basketball related income (BRI). BRI includes revenue generated by regular season gate receipts as well as the sale and licensing of broadcast rights and intellectual property. The higher the BRI , the higher salary cap for teams and the higher salaries for players. BRI will likely be adversely impacted by the loss of league business in China. The suspended season is poised to cause another unexpected drop in BRI. Although all or at least some of the NBA games cancelled during the COVID-19 suspension could eventually be made-up, there is no guarantee that will happen. And even if those games are played, it’s unclear if they would attract the same levels of attendance and viewership.
6) A suspended season could mean a delayed season or no season at all
The fact that the NBA’s season has been suspended doesn’t mean the season is over. Teams have played between 64 and 67 games of the 82-game regular season. That’s roughly 80% of the season. If the public health crisis is resolved within a month, it’s possible that the remainder of games could be played and the NBA season and post-season could be shifted further into the summer. The NBA finals are currently scheduled to begin on June 4; a month delay into July might still work, though it would push back the start of free agency and go past the NBA draft, too (unless the draft was also postponed). Alternatively, the NBA could resume in April and start the playoffs with teams’ records as they currently are. There are many possibilities.
Those possibilities, however, are contingent on two big unknowns. First, we have no idea when the COVID-19 public health crisis will be resolved or when the NBA will deem it appropriate to resume games. Will it be weeks? Will it be months? It’s impossible to know. Second, arenas that host NBA games also host other events, including concerts, various shows and in some cases NHL games. Those arenas may be booked in ways that make it difficult, if not impossible, to schedule NBA games outside of the normal NBA season. That could necessitate the use of alternative arenas. It would be a complex situation and a difficult challenge for NBA schedule-makers.
Taking stock of Gobert’s press conference conduct
If Gobert is the player who tested positive, his behavior during a press conference earlier in the week will draw scrutiny and ridicule. There is a video of Gobert, reportedly from Monday, where he intentionally touches microphones and recording devices with his hands as part of what thought was a humorous response to a reporter’s question. The question concerned whether Gobert was worried about getting coronavirus:
Gobert’s hand moves could have increased the odds that people who then touched the microphones and recording devices contracted coronavirus.
It’s unlikely that Gobert’s conduct will have any legal fallout. He presumably didn’t know he was infected at the time (and he might not have been infected at the time). Any argument that he intended to infect others—which could give rise to the torts of battery and intentional infliction of emotional distress—would seem far-fetched. He also didn’t intend to be the player that brought a pro sports league that generates about $9.5 billion a year to an indefinite halt.
If there is any silver lining from Gobert’s actions, it might be to warn those who are taking the current public health crisis lightly that it’s time to take it seriously.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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