American Sports As A Target of Terrorism: The Duty of Care After September 11th

Article by: Ron Hurst, Paul Zoubek and Catherine Pratsinakis

I. Introduction

The American sports industry responded quickly and decisively in the wake of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. As the nation mourned, sports leagues, teams and venue operators postponed games. Giants Stadium was turned into a staging ground for volunteers and supplies for rescue workers at Ground Zero. With President Bush's call for the nation to get back to business, the American sports industry worked tirelessly to enhance security at events and venues throughout the country before resuming play. Working cooperatively with government officials, law enforcement, the military and security experts, leagues, teams and venue operators conducted threat and vulnerability assessments and took aggressive actions to "harden" or protect their "assets" - the athletes, the spectators and the venues. Extraordinary efforts were employed at the World Series, the Super Bowl and the Olympics to prevent further acts of terrorism, all with great success, all with enormous price tags. It is estimated by way of example, that security at the Winter Olympics in Utah cost $310 million. Steve Woodward, Street & Smith's Sports Business Journal, Security Effort is Always Olympic Event, Vol. 4, Issue 42, at 1, 23 (Feb. 4-10, 2002).

As we look toward the future, the American sports industry is faced with a number of difficult issues:

What is the continuing threat against American sports?

How do we balance the continuing threat against the need to "get back to business"?

What is the duty of care that leagues, teams and venue operators owe players, employees, and fans?

II. Balancing the Threat of Terrorism Against the "Need to Get Back to Business"

September 11th has redefined the way in which Americans view the world and has literally brought "home" the realistic threat of terrorism. For many of us, we only learned in depth about the history of the threat posed by Osama Bin Laden, the Al Qaeda and other extremist groups after our attention was riveted to the collapsing World Trade Center Towers and the question of how could this have happened. Hopefully, we have learned that one of our greatest threats is "complacency."

Nonetheless, only six months after September 11th, it was reported that some sports facility managers were "considering whether some of the extreme measures taken after the terrorist attacks should be eased or abandoned completelyÖ" See Steve Cameron Venues Revisit Safety vs. Cost as September 11th Recedes, Street & Smith's Sports Business Journal, at 1 (March 11-17, 2002). A May 2000 article in Security Management entitled Building in Terrorism's Shadow written some eighteen months prior to September 11th, however, gives us an ominous warning of the risk of complacency:

While the World Trade Center and Oklahoma City bombings may be gradually receding into the collective subconscious, leading the public to become complacent, more recent events indicate that the terrorism threat remainsÖ (and is) a stark reminder that the physical protection of America's signature properties continues to be a critical security issue.

Michael Gips, Security Management, Building in Terrorism's Shadow, at 1 (May 2000).

American sporting venues must continue to be viewed as "American signature properties" subject to the real and present threat of a terrorist attack. We have routed the Taliban, but Osama Bin Laden's whereabouts are unknown. We have learned that the tentacles of the Al Qaeda network not only stretch across many nations but into our borders and that the hijackers lived quietly among us until they were summoned to carry out their holy war through acts of martyrdom with previously unimaginable consequences. As difficult as it is to comprehend, we must remember that these terrorists fundamentally believe in the destruction of America.

We must remain on heightened alert as a nation and we must continue to be vigilant. In testimony before Congress, on February 6, 2002, Mr. Dale Watson head of the FBI Counter- Terrorism Effort talked about the terrorism threat confronting the United States and warned that:

The Al-Qaeda and other groups associated with the international jihad movement will continue to focus on attacks that yield significant destruction and high casualties, thus maximizing worldwide media attention and public anxiety. As government and the military harden key assets the terrorists will move to others.

As high profile, large public gatherings that celebrate American popular culture, sporting events are, and will remain, a potential target of terrorism for the foreseeable future. So, as a sports lawyer, what should you be doing on behalf of your clients? As lawyers we prefer an analytical framework for approaching a subject. Here we suggest a four-prong test:

What is the threat to my client or my client's business?

What are my client's vulnerabilities to a terrorist attack?

What have we done, can we do, reasonably to protect against those threats?

What have we done to enhance our capability to respond to an incident?

In the aftermath of September 11th, most leagues, teams and venues went through a comprehensive threat assessment and established updated security guidelines and practices to meet the increased threat. The National Football League, by way of example, created a security task force and issued to teams a "best practices guide" of recommended security measures before resuming play. Some of the new security measures included: heightened security on a twenty four (24) hour basis, use of hand held metal detectors and search of all small bags and personal items; bans on backpacks, large purses, coolers, bags, etc.; parking prohibitions, limited vehicle access near the stadium, and road barricades; increased security personnel; additional surveillance equipment; as well as other internal security measures.

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