COVID-19: ensuring participant & spectator safety as sports activities resume (UK guidance & legal duties)

By Professor Mark James

On 10 May 2020, PM Boris Johnson addressed the nation[1] about the Government’s plans for the UK’s route out of lockdown. Further details on the proposed approach for England were provided on 11 May in the Government’s ‘indicative roadmap’, Our plan to rebuild: The UK Government’s COVID-19 recovery strategy[2], with additional information being released as it is produced. There has been no similar relaxation of the lockdown restrictions in Scotland, Wales and Northern Ireland.

The roadmap’s headlines include allowing unlimited outdoor exercise and being able to meet with one person from outside of your household, but with strict physical distancing continuing to be the norm. The reopening of outdoor spaces and activities (subject to continued physical distancing) is allowed earlier in the easing of restrictions because the risk of transmitting Covid-19 outdoors is significantly lower. The reopening of indoor public spaces and leisure facilities, and venues that attract large crowds like sports stadia, may only be fully possible at a significantly later date, depending on the ongoing reduction in the number of infections.[3]

Following the roadmap, on 13 May the Government published four further sports-specific guidance documents containing additional advice on the phased return of sport and reducing the risks of spreading Covid-19 (links below).  In light of these recent developments, this article examines:

1. The main points from the Government’s sports-specific guidance documents; and
2. The legal duties of care that governing bodies, event organisers, venue operators and sports clubs must keep in mind as sporting activities resume.

The UK Government’s sports-specific guidance

The four sports-specific guidance documents published by the UK Government cover:

• Guidance for the public on the phased return of outdoor sport and recreation;
• Guidance for personal trainers and coaches on the phased return of sport and recreation;
• Guidance for providers of outdoor facilities on the phased return of sport and recreation; and
• Elite sport return to training guidance: Step One.

The key points from these documents are that comprehensive, Covid-19 risk assessments are central to restarting sporting activities and events. These risk assessments will inform the bespoke guidance and protocols that will be required for each specific sporting discipline and each individual sports facility. Each sports governing body and each individual sports club must appoint a Covid-19 officer to lead on Covid-19 risk assessments and policy developments. Each sport must also appoint a Covid-19 medical officer to assist with the risk assessments and policy development. The named medical officer will also lead on case management of suspected cases.

Physical distancing requirements must still be enforced, meaning that people can exercise alone, with members of their household, or with one other person from outside your household while keeping two metres apart at all times. Venues must be deep cleaned before use and shared equipment must be cleaned regularly and where possible before being passed to other participants. Balls do not appear to be considered to be equipment that should be cleaned between uses, though it is recommended hands should be washed thoroughly before and after use. With one-on-one basketball games being allowed, it is to be hoped that an appropriate risk assessment has been conducted to ensure that the virus cannot be spread from face-to-hand-to-ball-to-hand-to-face.

In the specific guidance for elite athletes, it is made clear that they, and associated support staff, will have to opt in to returning to training and will be required to undergo a one-to-one assessment that outlines the risks associated with their sporting activity before they can re-engage with it. Physical distancing rules must continue to be enforced, including at group training sessions. Step Two, for which no date has yet been set, will allow ‘social clustering’ within training groups, enabling athletes to engage in contact including close quarters coaching, sparring in combat sports, tackling in contact sports and equipment sharing.

For sport, this is an important development as it will allow people to engage in outdoor activities and coaching sessions, and in the case of sports such as golf, tennis, bowls and water sports on open waterways, to restart provided that specific safety precautions are in place. The Royal and Ancient Golf Club has been quick to provide information to golfers and golf clubs through the provision of a response to the Prime Minister’s television address[4], highlighting that the safety and wellbeing of everyone associated with golf remained its priority, a response to the publication of the roadmap[5], stating specifically which groupings are allowed to play together, and a Covid-19 advice page[6], that explains how the game must be played safely once the lockdown restrictions are eased. This includes advice on setting up the course, including the removal of rakes from bunkers and not touching flags, ensuring an appropriate gap between groups setting off from the first tee and reminding players to physically distance whilst playing, especially on tees and greens. Similar advice has been developed by the Lawn Tennis Association[7] for venues, players and coaches.

This guidance will inform professional sports’ investigations into how they can restart in a way that minimises the risk of all those present at an event of contracting Covid-19. Football, cricket, rugby and athletics have all expressed desires to restart their seasons, but with no consensus on how this can be done safely. Even within sports, there are differing approaches[8]. Where the Premier League’s ‘Project Restart’ insists that health and safety is a priority, the Bundesliga has been more forthright in stating that its aim is not to guarantee the 100% safety of all participants, as this is likely to be impossible. Instead, it is planning to take a medically justified risk in restarting. This could, as a worst case scenario, mean planning for a death from Covid-19.

The problem for each of these and almost all team sports, is that by their very nature, they cannot comply with physical distancing requirements. Where contact sports are concerned, Dr Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases in the USA and a lead members of the White House Coronavirus Task Force, has stated that contact sports like NFL are set-up perfectly for spreading Covid-19[9]. Any return to play protocols must ensure that they take into account the how the virus is ‘shed’ by an infected person and can be transmitted, for example, from the nose to the hands, then to clothing and ultimately on to another person. A further issue is the possible risk of transmission of the virus via equipment essential to the game. The advice from Sport England[10] is that equipment can be shared, but players should enforce strict hygiene measures by, for example, cleaning items rigorously in line with wider hygiene-related guidance and washing hands thoroughly before and after use. Whether this is practical in sports where a ball is handled constantly is questionable and appears to have been overlooked in all of the guidance, which refers simply to washing ones hands before and after playing.

At some stage, the issue of allowing spectators back to events will also need to be considered. At the time of writing, those major sports that have restarted, such as football in South Korea and the Ultimate Fighting Championship, have done so behind closed doors. Even then, World Rugby’s advice on returning to play[11] considers that it is necessary for 167 people to be present in order to run a game of professional rugby: 58 players, eight stadium operations staff, 41 people working in the media, 16 medical personnel, 10 administration staff and four security guards. When crowds are allowed back, a clear set of protocols will need to be developed, including the impact of physical distancing requirements on arena capacities, ingress and egress, the regulation of people in and whilst moving around the arena, and whether different rules are needed for outdoor and indoor events.

The Government’s advice makes it clear that it is for individual sports bodies and facilities to develop their own specific guidance on reopening. This should enable sport to find an approach that best fits its own particular situation. This will mean that any sport, any venue hosting a sports event, and all sports facilities will need to undertake a specific Covid-19 risk assessment before any restart can commence that should cover not just the participants, but all personnel necessary to enable the activity to take place including coaches, officials, medical teams, ground staff, and eventually, spectators. Interim guidance[12] on conducting risk assessments at sports events was produced by the World Health Organisation on 14 April 2020, and is accompanied by an interactive risk assessment tool[13].

As sport emerges tentatively from the lockdown restrictions, the governing bodies, venue operators and clubs will need to keep a range of legal issues in mind.

Legal duties for sport governing bodies & event organisers 

A duty to ensure the safety of sports participants has been imposed on sport governing bodies (SGBs) since Watson & British Boxing Board Of Control Ltd & Anor[14]. This requires athletes’ safety to be paramount when designing not only the playing rules, but the associated safety regulations and protocols. A similar duty would be imposed on event organisers in either negligence or under the Occupiers Liability Act 1957 (Wattleworth v Goodwood Road Racing Company Ltd & Ors[15]). By analogy, such a duty could be extended to cover anyone required to be at the game, for example those identified by World Rugby, as well as spectators.

As the Government expects sports to develop safety protocols in line with government advice, there is an expectation that SGBs will act as the experts for their full suite of disciplines. As Covid-19 is now a known risk, it is one that must be addressed by SGBs in the playing and safety protocols. Risk assessments for all categories of personnel engaging in a sporting activity must be carried out to ensure that everyone at an activity or event is reasonably safe. Following reports that participants in the Olympic European Boxing Qualifying Event[16] claimed to have contracted the virus whilst at the event in London, event organisers should be aware that in the future, failing to address the known risks of transmission has the potential to be considered negligent.

Legal duties for sports clubs & venue operators

For sports clubs and venue operators, two distinct areas of the law may come into play when reinstating sporting activities. First, there is the possibility of criminal liability under the Health and Safety at Work Act 1974. Health and safety law imposes on employers the responsibility to protect workers and others from risk to their health and safety. A failure to do so that causes a risk of harm being caused to employees is sufficient to trigger an offence under the Act. Further detail on the duties imposed and the ways that these can be discharged, is provided by the Health and Safety Executive has an extensive library of resources and information[17], including a dedicated section on workplaces and Covid-19[18]. In extreme cases, it is possible that an offence of corporate manslaughter[19] could be committed by the failure to provide sufficient protective measures to employees. Although such an intervention is rare, corporate manslaughter charges are currently being investigated by the HSE[20] in respect of the failure to provide personal protective equipment to frontline medical staff.

Secondly, employers can be liable in negligence where they fail to discharge any of a series of duties owed to their employees to ensure that they are safe in the workplace. Employer’s liability encompasses the duties to provide: competent staff; adequate materials and equipment; a proper system of working, including effective supervision; and a safe place of work. This would again require an employer to carry out a risk assessment relating specifically to the potential transmission of Covid-19 and to implement its findings before requiring employees to return to work. Any return to work protocols would have to address new requirements imposed on employees for the safety of themselves and their colleagues; ensuring that equipment was cleaned regularly; and ensuring that, as far as is reasonably possible, the working environment was safe for the specific job being undertaken.

Whether this is possible under the emerging state of knowledge at the current time is yet to be seen. Whereas it may be possible to create a safe environment for non-contact and physically distant sports such as golf and tennis, sports requiring close proximity, such as netball and basketball, or physical contact, such as both codes of rugby, may find it more difficult. As such, each sport will need to develop its own bespoke protocols.

Can you rely on voluntary assumption of risk & contributory negligence?

It is possible that if someone contracted the virus whilst participating in, or attending, a sporting activity or event, the person or organisation at fault may seek to raise the defences of voluntary assumption of risk and/or contributory negligence. Voluntary assumption of risk, or volenti non fit injuria, operates as a complete defence where the injured party was fully aware of the risks involved with the activity before engaging in it. Contributory negligence[21] is a partial defence covering situations where, in the context of a negligent act by the defendant and as a result of failing to take care of themselves, the injured party has been caused harm. The defence operates to apportion liability between the claimant and defendant on the basis of what is fair and reasonable.

Where a person contracts the virus at a sporting event, or whilst engaging in a sporting activity, after having been warned of the foreseeable risks, then these defences could apply. It has been reported by the World Players Association[22] that some athletes are being asked to waive their legal rights in respect of contracting the virus as and when their sports resume.

Duties towards spectators

There have been anecdotal reports that in the days leading up to the lockdown, a number of people contracted Covid-19 whilst attending major sporting events. In particular, there are infection hotspots in Cheltenham[23], following the Cheltenham Festival, and concerns about the impact of 3,000 Atletico Madrid fans attending a Champions League match in Liverpool. At present, it is not possible to determine whether or not these events have acted as a means of spreading the virus, however, the concerns they have raised should serve as a warning that very specific risk assessments need to be carried out before allowing capacity crowds back to sporting events.

Perhaps AGF Aarhus has come up with the solution for its upcoming Danish Superliga derby with Randers: virtual stands[24]. Aarhus has teamed up with Zoom, the meetings platform that millions are now familiar with, to give fans the chance to watch the match together. The club will create 22 different Zoom calls, corresponding to 22 sections of Ceres Park Stadium, including both neutral and away zones. Screens will then be positioned inside Ceres Park showing fans on the various Zoom calls, allowing players to see the virtual crowd during the match.

By Professor Mark James, Manchester Law School

Professor Mark James re-joined Manchester Law School in January 2016. He began his academic career at Anglia Polytechnic University on a research scholarship, examining the scope of the consent given by participants in contact sports to injury-causing challenges. His first appointment at Manchester Metropolitan University was in 1997 to lecture in criminal law and sports law and to develop its innovative MA (Sport and the Law).

In 2006, Mark moved to the University of Salford to help establish the Salford Law School. During his time there, he was appointed Reader in Law, Associate Head (Research), Director of the Salford Centre of Legal Research and served two years as Head of School. From 2013 to 2015, he was Director of REF Strategy at Northumbria Law School, from where he return to MMU to take up the position of Director of Research in the Law School. Mark is one of the country's leading experts on sports law and Olympic law.

Posted in COVID19, Sports, Football, Golf, Articles, Regulation & Governance, Tennis 44703

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