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Despite the challenges, here's how the NFL could implement a bubble




Among all of 2020’s oddities, the word “bubble” has become the quintessential buzz word within sports. And no, we’re not talking about the liquid substance I loved and adored as a child.


Although this bubble isn’t liquid, I love and adore it for a different reason: It seems to effectively give us live sports amid a pandemic that continues to rock the United States. The bubble I am speaking of is the theoretical, invisible-lined world in which athletes can interact while few others can penetrate it.

It’s a wonderful, Narnia-esque world where we virtually can see the magical sights of 7-foot-3 Tacko Falls riding little cars, playing golf, or catching bass fish. It’s a world of its own -- a world that seems to reinstate a sense of normalcy, one where COVID-19 has not ruined the day (yet).


It’s a world the NBA, NHL, and MLS have instituted, one the MLB has not instituted (and is possibly regretting right now), and one which the NFL might be able to accomplish -- might.

SHORT ANSWER: HOW THE NFL CAN MAKE THIS HAPPEN

The NFL could create four bubbles in Boston, Massachusetts; Philadelphia, Pennsylvania; Los Angeles, California; and either Denver, Colorado, or Kansas City, Missouri.


Two divisions would be in each bubble and play full regular seasons. Owners could still receive Local Revenue from corporate sponsorships by earning the right to place advertising on the first few rows of seating in the neutral stadiums.

HOW OTHER BUBBLES HAVE FAED

Since major professional sports have returned, three of them (MLS, NBA and NHL) have utilized the bubble concept while one (MLB) has not. In just a few weeks, the leagues using bubble concepts have found surprising success: All of them have registered zero positive tests recently.

The NBA reported on July 20 that its most-recent round of testing found zero cases among 346 tests.[1] The NHL reported zero cases out of 800 players during its second week of testing (its first week returned two positive tests).[2] MLS, which suffered a bump in the road when two of its teams left the bubble at the very beginning, has been routinely tested more than 1,000 individuals and has not returned a positive test since July 12.[3]


MLB, on the other hand, began its season approximately a week ago without a bubble. Although the season is shortened, traveling is limited and the league has a 113-page manual on COVID-19, MLB is already facing controversy.

The Miami Marlins had 17 team members test positive for the virus shortly after playing a game in Philadelphia against the Phillies.[4] Now, it's season is on hold, and other teams have had games postponed.[5] Although it has only been a few weeks since most of the bubbles have been utilized, trends are showing that positive cases arose at the very beginning (when players hadn’t really been in the bubble) but are subsiding as players spend more time in the bubble.

Time could show the bubble to be ineffective, but as of now, the concept looks solid across all three leagues utilizing it.

LONG ANSWER: HOW THE NFL CAN MAKE THIS HAPPEN

The NFL faces a slightly different scenario than fellow leagues for numerous reasons: (1) It is in the process of beginning its season and plans to play a full season, unlike the NBA, NHL and MLS; (2) The NFL has more teams (32) playing than most other leagues; (3) NFL rosters and support staffs are larger than other leagues.


The NFL wants to play a 16-game regular season with 53-man rosters. Factoring in all 32 teams, active players, coaches and support staff, it’s a fair estimate to figure each team will carry roughly 100 individuals. Over 32 teams, that’s a total of 3,200 people, and that doesn’t include media.


For the NFL bubble to be effective, it should emanate the other bubbles as closely as possible. The NBA bubble features a little more than 1,000 people while MLS and the NHL bubbles feature approximately 1,200 people.[6]

A 3,200-person bubble in the NFL, frankly, is too large. Few locations could handle that many people for the span of time the NFL envisions. A likelier and safer option would be multiple bubbles. Four bubbles makes sense.


Four bubbles allows each bubble to hold 800-1,000 people and would create a system where two divisions would be in each bubble. I would propose a “bubble” system such as the following:

Boston, Massachusetts (AFC East-AFC North)

The AFC East and AFC North would play within the bubble over the course of 16 games. With four games a week, the teams would rotate between playing at Gillette Stadium (home of the New England Patriots) and Harvard University. Each stadium would hold two games each weekend (other than on bye weekends).


Harvard University makes sense as a partner because the Ivy League has already announced it will not be having fall sports. Harvard makes sense for both sides; it’s only forty minutes away from Gillette Stadium, so teams could stay somewhere halfway between both stadiums.


Harvard does not have a football team playing and could use additional revenue from holding NFL games to offset its athletics department losses caused by COVID-19.


Philadelphia, Pennsylvania (NFC East-NFC North)

The NFC East and NFC North would play within the bubble over the course of 16 games. With four games a week, the teams would rotate between playing at Lincoln Financial Field (home of the Philadelphia Eagles) and the University of Pennsylvania. Each stadium would hold two games each weekend (other than on bye weekends).


Just like Harvard, the University of Pennsylvania is in the Ivy League. The stadiums are only 10 minutes away.


Los Angeles, California (NFC West-NFC South)


The NFC West and NFC South would play within the bubble over the course of 16 games. With four games a week, the teams would rotate between playing at SoFi Stadium (home of the L.A. Rams and L.A. Chargers) and the Rose Bowl. Each stadium would hold two games each weekend (other than on bye weekends).


The Rose Bowl makes sense because it is owned by the city of Pasadena and few other events are happening between now and the end of 2020. Even if the Rose Bowl were to not agree to the NFL playing games, Los Angeles has several universities who may be willing to rent out their premises.

The stadiums are forty minutes away, so teams could stay somewhere halfway between both stadiums.


Denver, Colorado / Kansas City, Missouri (AFC West-AFC South)


The AFC West and AFC South would play within the bubble over the course of 16 games. Either Denver or Kansas City could possibly work. Kansas City is a more central location for both divisions, but Denver has stadiums closer to one another.


With four games a week, the teams -- if playing in Denver -- would rotate between playing at Empower Field at Mile High (home of the Denver Broncos) and the University of Colorado. Each stadium would hold two games each weekend (other than on bye weekends) and are thirty minutes from each other.


If playing in Kansas City, the teams would rotate between Arrowhead Stadium (home of the Kansas City Chiefs) and Kansas University. The stadiums are fifty minutes apart, so teams could stay halfway between, if needed.


Colorado and Kansas’s football teams may be a potential stumbling block. Neither team’s conference has suspended the season, so there could be situations where the college team would play on Saturday and the NFL teams play on Sunday. Although not impossible, it would take effort.

The financial gain from leasing the premises on Sundays could be very valuable for the athletics departments, though.


The playoffs


Two bubbles could be used for the first two rounds of the playoffs. The NFC Championship, AFC Championship and Super Bowl could all be played within the same bubble.

THE COMPLEXITIES


No one is suggesting that creating a bubble plan is easy. The NBA took months to plan its bubble, and it’s possible (likely) the NFL seriously considered one for itself. The bubble concept is possible for the NFL, but it comes with its fair share of complexities.

Owners and Local Revenue


The NFL salary cap is structured to include three main sources of revenue: League Media, NFL Ventures/Postseason and Local Revenue.[7] All three sources of revenue are combined and are shared between the owners and players. The 2020 CBA says that players receive 55 percent of League Media (TV rights, broadcasting, etc.), 45 percent of NFL Ventures/Postseason (NFL Network, postseason play, etc.), and only 40 percent of Local Revenue (concessions, tickets, corporate sponsors, etc.).[8]


While players will earn at least 47 percent (but no more than 48.5 percent) of the revenue this upcoming season,[9] owners take a larger cut of the Local Revenue. Essentially, the more money owners make off Local Revenue, the more the franchise keeps.


Local Revenue matters to teams; take the Packers in 2018, who earned $196 million from Local Revenue, which accounted for 43 percent of its earnings that year.[10]


Owners are already losing a gaudy amount of money, projected somewhere between $2 billion[11] and $5 billion,[12] if fans don’t fill the seats this fall. Moving to a bubble concept where teams do not play in their own stadium essentially strips owners of all Local Revenue.


Teams have been planning to use the first six to eight rows of stadiums for corporate sponsorships to lessen the blow of lost ticket revenue,[13] but in a bubble concept, those corporate sponsor deals could be all but eliminated.

While that could be problematic, there is a work-around: Allow franchises to earn money off corporate sponsorships while playing in these “neutral” sites. For example, if the Cowboys are playing the Giants at the University of Pennsylvania, the teams could both display corporate sponsorships in the seats and possibly on the field.

The franchises would then retain any revenue they make off those corporate sponsorships. There would certainly need to be some carve-outs and specific language within contracts (such as the University of Pennsylvania allowing franchises to use its premise for such activities), but it’s possible.


Giving owners the ability to earn Local Revenue could assuage some of their concerns for moving to a bubble concept.

Length of the season

The NFL is hoping to play a full 16-game regular season and playoffs, which would span for about five months. Other leagues, such as the NBA and MLS, who have utilized bubbles will not be playing for that long.


The NBA only has eight regular-season games remaining and then the playoffs. MLS is playing a tournament which is only scheduled to last about one month. The NHL’s bubble is for playoff purposes and will last about two months.

MLB’s season length is similar to the NFL’s, one reason which likely swayed baseball toward not using the bubble system. The ultimate question is: Are NFL players, coaches and staff willing to be away from their families for five months?

The NBA is allowing family members to penetrate its almighty bubble later in the season, so potentially, the NFL could look into doing something similar. But the “quarantining” away from family is difficult.

It’s not easy. But nothing has been easy in 2020 so far, so it’s up to players to determine whether the season is worth it.

It’s not a true “bubble”


The NBA and MLS’s bubbles are pretty true bubbles since everyone is located on Disney’s campus. My proposed NFL bubbles wouldn’t be true bubbles because teams would have to travel to and from stadiums, but it’s a very doable process.

Simply busing players to and from stadiums shouldn’t be too difficult. MLS is already doing so,[14] and the NHL itself is playing in two bubbles in Edmonton and Toronto. Neither location is a “true” bubble.

As long as NFL players don’t roam the streets of their respective cities, a semi bubble is possible.

Photo credit goes to NBC News.

The NFL isn’t planning for a bubble, but maybe it should


According to the NFL’s chief medical officer Allen Sills, the league isn’t planning to use a bubble. He said, "When you talk about a 'bubble’ … people define that term differently. Some people define it one way and others define it another way. We would say that we already have a virtual football bubble, because as we said before, everyone in our team environment shares the same risk, but they share the same responsibility to each other.”[15]


But will the virtual bubble work in arguably the most close-quarters sport? Twenty players have already opted out of playing this season,[16] which shows athletes may not be completely sold on the NFL’s plan.


Although the NFL has undoubtedly done its homework on the feasibility of a bubble, future plaintiffs in a hypothetical COVID-19 negligence case could make arguments to pit liability on the league.


To determine an individual breached its duty, plaintiffs in a negligence case must show the defendant did not act as a reasonable man would have acted. Although tort law differs by state, most jurisdictions suggest that an individual should use a moderate amount of care -- care that is neither minimal nor extravagant.


Industry standard is often considered, although it is not dispositive unless the defendant is within a professional industry, such as a doctor or lawyer. In most medical malpractice cases, for example, a plaintiff can prove the defendant breached his/her duty if the defendant did not follow industry standards -- what most other reasonable doctors would have done in the same situation.

Given this current health dilemma and the potential liability of a league, a jury would hear from different experts on the subject (what is often called the “battle of the experts”). Dr. Anthony Fauci is considered the go-to expert for COVID-19 and has been quoted as saying it would be hard to envision an NFL season without a bubble.


"Unless players are essentially in a bubble -- insulated from the community and they are tested nearly every day -- it would be very hard to see how football is able to be played this fall,” Fauci said. “If there is a second wave, which is certainly a possibility and which would be complicated by the predictable flu season, football may not happen this year."[17]

A plaintiff’s lawyer could argue the NFL was on notice from a well-known expert; it should have foreseeably seen its actions would result in a dangerous situation for players. The NFL would then present its own expert, who would claim Fauci was wrong and say a bubble was not necessary. The jury would then decide which expert was more credible or believable.


Dr. Fauci’s credibility is both questioned and revered at the same time, possibly depending on which side of the political aisle in which you sit. Fauci’s credibility would be considered by attorneys on both sides, and it would certainly be something attorneys would need to consider during jury selection.

A plaintiff’s attorney could also point to other professional leagues’ use of a bubble and claim that a bubble should have been “industry standard.” If the NBA, MLS, NHL, WNBA and NWSL used bubbles, the NFL should have done so, as well. The NFL also should have recognized the success of the other bubbles and recognized the potential failure of MLB’s non-bubble.

The NFL would then point to MLB’s lack of a bubble, claim a bubble is not industry standard, and that the use of a bubble is either “extreme” care or that a bubble is not safer than no bubble. The NFL would argue it acted reasonably, as any reasonable man would do, by using the precautions listed out, as seen here.

The NFL could also argue there was no causation between the NFL’s breach and the plaintiff’s injury. With how rampant COVID-19 is, including its high level of contagiousness, a plaintiff would have to show a strong case for causation -- that the NFL’s negligence directly and proximately caused the player’s injury.


Finally, the NFL could use players opting out as evidence that a plaintiff assumed the risk of playing. Even though a player may not explicitly sign an assumption of risk, the NFL could argue a player implicitly assumed the risk because he was aware of potential dangers.

While the NFL may have a strong case against its liability, it would ultimately be up to a jury. Nonetheless, the NFL’s may just want to follow the path of other leagues who have enacted a bubble. The bubble might be feasible as laid out in this article, although there are absolutely other, more minute issues at hand not discussed here.


Still, a bubble might just be what the NFL needs to finish a full season. And hey, if it gives us Patrick Mahomes and Deshaun Watson playing golf against one another in the Denver/Kansas City bubble, I’m all for it.

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Hayes is a second-year law student at Florida State University College of Law and a Co-Founder and Co-President of SSLN.

[1] NBA: Zero positives out of 346 players tested for coronavirus in Orlando bubble, ESPN (July 20, 2020), https://www.espn.com/nba/story/_/id/29504583/nba-zero-positives-346-players-tested-covid-19-orlando-bubble.

[2] James O'Brien, NFL announces zero positive COVID-19 tests during second week of training camp, Yahoo! Sports (July 27, 2020), https://sports.yahoo.com/nhl-announces-zero-positive-covid-170049765.html.

[3] Major League Soccer announces COVID-19 testing update, MLS Soccer (July 26, 2020), https://www.mlssoccer.com/post/2020/06/28/major-league-soccer-announces-covid-19-testing-update.

[4] Ray Sanchez and David Close, Miami Marlins' season on hold after more players test positive for Covid-19, CNN (July 28, 2020), https://www.cnn.com/2020/07/28/us/mlb-miami-marlins-coronavirus-spt-trnd/index.html.

[5] Id.

[6] Ben Golliver, The NBA has arrived at Disney. Here’s what it looks like inside the Florida bubble, The Washington Post (July 13, 2020), https://www.washingtonpost.com/sports/2020/07/13/nba-has-arrived-disney-heres-what-it-looks-like-inside-florida-bubble/; Tom Marshall, MLS is Back Tournament records zero coronavirus cases in latest round of tests, ESPN (July 14, 2020), https://www.espn.com/soccer/major-league-soccer/story/4136882/mls-is-back-tournament-records-zero-new-coronavirus-cases-in-latest-round-of-tests; Ryan Kennedy, NHL BUBBLE NEED TO KNOW: THE TOURNAMENT IS UPON US, The Hockey News (July 24, 2020), https://thehockeynews.com/news/article/nhl-bubble-need-to-know-the-tournament-is-upon-us.

[7] 2020 NFL CBA art. XII, § 6(a).

[8] 2020 NFL CBA art. XII, § 6(c)(i).

[9] 2020 NFL CBA art. XII, § 6(c)(ii).

[10] Jakob Eckstein, How the NFL Makes Money, Investopedia (Sept. 24, 2019), https://www.investopedia.com/articles/personal-finance/062515/how-nfl-makes-money.asp.

[11] Ken Belson, N.F.L. Owners and Players in Talks on How to Offset Loss of Fans, New York Times (July 2, 2020), https://www.nytimes.com/2020/07/02/sports/football/nfl-salary-cap-no-fans.html.

[12] Mike Florio, Fan-free season could spark $5.5 billion loss for NFL, Pro Football Talk (May 20, 2020), p://www.espn.com/nfl/attendance/_/year/2008.

[13] Charean Williams, NFL to sell advertising on lower rows of seats this season, Pro Football Talk (June 24, 2020), https://profootballtalk.nbcsports.com/2020/06/24/nfl-to-sell-advertising-on-lower-rows-of-seats-this-season/.

[14] Steven Goff, The MLS bubble is a massive undertaking. How it fares will tell us a lot about sports’ return, The Washington Post (July 10, 2020), https://www.washingtonpost.com/sports/2020/07/10/mls-bubble-is-massive-undertaking-how-it-fares-will-tell-us-lot-about-sports-return/.

[15] Kevin Seifert, NFL has no current plans to go to bubble, chief medical officer says, ESPN (July 27, 2020), https://www.espn.com/nfl/story/_/id/29548201/nfl-no-current-plans-go-bubble-chief-medical-officer-says.

[16] List of NFL players to opt out of 2020 season, NFL.com (July 28, 2020), https://www.nfl.com/news/list-of-nfl-players-to-opt-out-of-2020-season.

[17] Wayne Sterling and Dr. Sanjay Gupta, Football may not happen at all this year, Fauci warns, CNN (June 18, 2020), https://www.cnn.com/2020/06/18/us/football-happen-fauci-spt-trnd/index.html.

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