Safe Sport During COVID-19 ' Liability Considerations For Canadian Sporting Organizations

• Published date: 27 July 2020
• Subject Matter: Media, Telecoms, IT, Entertainment, Coronavirus (COVID-19), Sport, Insurance Claims, Litigation, Contracts and Force Majeure
• Law Firm: Gowling WLG
• Author: Ms Jahmiah Ferdinand-Hodkin and Wudassie Tamrat

On March 11, 2020, the World Health Organization ("WHO") declared the novel coronavirus ("COVID-19") a global pandemic.¹ By the end of March 2020, almost every recreational, amateur and professional training and sporting event was cancelled worldwide. In an unprecedented step, the Olympic Games were postponed to Summer 2021, and professional sports leagues were indefinitely suspended.² Now, over four months later, major efforts have and continue to be undertaken to facilitate the return of safe sport at all levels.

In Canada, the National COVID-19 Return to High Performance Sport Task Force (the "Task Force") lead by Own the Podium CEO Anne Merklinger, has developed a series of resources to assist in the return to sport for all amateur sports, including recreational and community-based organizations. The COVID-19 Return to High Performance Sport Framework, which includes a COVID-19 Risk Assessment for Sport and a Club Risk Assessment and Mitigation Checklist Tool (the "Framework"), is the blueprint for assisting Canadians in returning to sport. The Framework is intended to act as the minimum standard and should be applied while considering the specific nature of the sport and the participants.

While Canada has progressively permitted return to sport, the return of competition is also moving forward. Some international sporting organizations have already begun to resume (e.g. NASCAR³, UFC⁴ and the English Premier League⁵) and many more professional sports leagues are set to engage momentarily:

• Major League Baseball (MLB) is scheduled to return to play on July 23-24, 2020. However, due to concerns about the risks associated with the league's travel schedule, the Canadian federal government has refused to allow the Toronto Blue Jays to play in Canada when the season re-opens.
• The National Basketball Association (NBA) is set to return on July 30, 2020, with all games played without spectators in Walt Disney World, Florida.
• The National Hockey League (NHL) is scheduled to return on August 1, 2020, with teams quarantining in Toronto and Edmonton and playing a unique playoff format without spectators.⁶

Meanwhile, the Task Force is also working on preparing a framework for return to competition. This framework will address issues applicable at both the domestic and international levels - acknowledging that each will present different risks and considerations.

Legal liability in the return to sport context

In developing the return to sport and return to competition frameworks, the Task Force has not only focused on protecting the health and safety of the athletes, but also the coaches, staff and the communities in which they live and train. The Task Force has grounded their work in the values and principles enunciated in the Canadian Sport Policy, which has been effective in Canada from 2012 to 2022.

Importantly, the safe return to sport involves assessing the exposures/potential exposures of participants, the location of the sporting event and the mitigation strategies that can been implemented to reduce risks. The key to reducing legal liability is to then implement the appropriate policies, procedures and guidelines to reduce risk of disease transmission.

While Canadian courts have not yet addressed claims against sporting organizations for injuries sustained as a result of disease transmission, there is case law to suggest potential grounds for such an action. Generally speaking, the operator of a sporting event or facility holds a duty to exercise reasonable care when organizing and supervising activities to prevent injury to participants. While Canadian law broadly recognizes that participants in sporting activities accept the ordinary and necessary risks that are incidental to the sport,⁷ participants may nevertheless bring civil action against operators where they have acted negligently in the administration of sporting events or activities.

Accordingly, to minimize potential injury or harm to participants in the sporting context, Canadian courts have already recognized that a sporting operator's responsibilities may involve the following (which have particular significance in the context of COVID-19 disease transmission and infection control considerations):

1. Preventing crowding;
2. Using/implementing efficient supervisions and control;
3. Giving necessary instructions and warnings;
4. Selecting and fitting proper and suitable equipment; and
5. Taking reasonable precautions to see that conditions for an activity are not unduly hazardous.⁸

There is also potential exposure to sports organization under occupiers liability laws. For example, in Ontario, the Occupiers Liability Act requires an "occupier" to take reasonable care over the safety of persons entering its premises - a responsibility which applies to risks caused both by the condition of the premises and/or by the activities carried...