One of the biggest hurdles sports leagues at both the professional and amateur levels must clear is the potential liability for any COVID-19-related illness or injury. The leagues and teams will face possible liability from fans, vendors, and staff that work sporting events. However, with most sports planning to play in empty arenas and limiting the number of crew members on staff, the main potential liability will come in the form of the athletes themselves.
Above all else, athletes are necessary to produce the sport product. The leagues, teams, and venues must have a way to protect themselves from potential lawsuits from the athletes, or the risk of major damage awards for positive COVID-19 diagnoses could outweigh the possible reward from returning to action.
For the “Big Four” sports leagues (NFL, NBA, NHL, and MLB), the best route forward may be following the lead of Dana White and the UFC. The UFC was one of the earliest sports to return, filling a need for live action competition across the globe. UFC was able to return so quickly because they required their athletes to sign liability waivers before they could participate in UFC events.
The waiver releases UFC from any and all liability related to contracting COVID-19 and the symptoms that come with it, up to and including death of the person agreeing to the waiver. The UFC made their fighters, members of the media, members of the fighters’ teams, and the staff required to put on the events sign a COVID-19 waiver. Without it, a COVID-19 outbreak at a UFC event would have the potential to be a massive economic detriment to the company and make producing content too risky to attempt.
On top of the liability waiver that cleared the UFC of any potential responsibility in case of COVID-19 infection, the UFC included a “non-disparagement” clause in the waiver. A non-disparagement clause is a common part of employment contracts as an agreement that the employee will not say anything negative about the organization. In UFC’s case, it specifically included verbiage about saying anything negative regarding procedures related to COVID-19.
Dana White attempted to dispute the reporting on this clause, saying it only pertained to false information being spread by fighters and that their opinions would not be restricted. What Dana White fails to explain is why the clause is not more clearly a defamation clause; he himself even calls it a non-disparagement clause. Defamation clauses restrict only the telling of false information about an organization and not mere opinion. This seems to be what Dana White is describing, but it is not what the clause actually says. Nevertheless, it seems to have been effective so far; there have been multiple shows conducted and the UFC is continuing to move forward.
Even following the path UFC has laid out, the “Big Four” sports will not have as easy of a time designing a liability waiver that will get players back on the field/court/ice. For one thing, players in the major sport leagues tend to be outspoken about their opinions and will be less likely to sign or follow any “non-disparagement” clauses. Another issue is the power of the unions in major sports.
In UFC, the fighters are basically individual contractors and do not have any group representation fighting for them. The “Big Four” sports all have strong unions who will make designing a COVID-19 liability waiver that the players are willing to sign that much harder.
Collegiate sports have even tougher obstacles in producing an effective waiver, namely the fact that the athletes are young, unpaid amateurs. It is one thing to ask professionals making millions of dollars to sign away any rights to a COVID-19 lawsuit; it is much harder to contemplate student-athletes being willing to do so. Even if collegiate athletes were responsive to signing a liability waiver, the court of public opinion would condemn the NCAA and colleges across the nation. Based on the way the NCAA is currently viewed, it likely will want to avoid any negative press, therefore making a liability waiver an unlikely option.
Though it is encouraging to see resumption agreements between players and owners, such as in the NHL and NBA, those were financial and schedule agreements; the leagues must get creative with their safety plans and procedures, via liability waiver or otherwise, to ensure that the sports will return as planned.
Justin Delise is a rising second-year law student at Florida State University College of Law and the Lead Editor of The Sports Blawg.
 Marc Raimondi, UFC 249 fighters could lose purse if they criticize coronavirus safety protocols, ESPN (May 9, 2020), https://www.espn.com/mma/ufc/story/_/id/29155525/ufc-249-fighters-lose-purse-criticize-ufc-coronavirus-safety-protocols.
 Josh Eidelson, Ira Boudway, and Eben Novy-Williams, UFC Bans Fighters From Criticizing its Safety Protocols, Bloomberg (May 10, 2020), https://www.bloomberg.com/news/articles/2020-05-10/ufc-bans-fighters-from-criticizing-its-safety-protocols.