Although many Americans first became aware of COVID-19 in late January of 2020 through reports buried deep in newspapers and television broadcasts regarding a novel virus afflicting thousands of citizens in the city of Wuhan, China, the tipping point toward a fuller appreciation in the United States of the extent of the threat came on the evening of March 11, just hours after the World Health Organization (WHO) declared a global health pandemic, when minutes before tipoff of a basketball game in Oklahoma City between the Utah Jazz and the Oklahoma City Thunder, the contest was cancelled following the announcement that Utah’s Rudy Gobert had tested positive for coronavirus.
Within one hour, the NBA season was suspended, and in the whirlwind 48 hours that followed, incomplete college conference basketball tournaments were initially modified to be played without fans in the arenas before being altogether cancelled; other professional sports leagues such as the NHL, MLS and MLB suspended operations indefinitely; the NCAA men’s and women’s basketball tournaments were cancelled; and state high school basketball tournaments across the country were postponed or cancelled.
Within a week, edicts were issued by governors, universities, state boards of education and state athletics/activities associations creating policies that would impose what soon became known as “social distancing” by cancelling in-person college and K-12 classes and shifting them to online formats, cancelling the remainder of university and scholastic winter sports seasons, and postponing or cancelling upcoming college and high school spring sports seasons.
The restorative role of sports in American culture had never been so apparent and the unique ability of athletic events, both through viewership and participation, to serve as a curative agent during challenging times had never been so pronounced as they would become through the absence of sports during the spring of 2020. Think back to the unifying impact on September 21, 2001, of the New York Mets’ Mike Piazza hitting an eighth inning, go-ahead, two-run homer at Shea Stadium against the Braves in the first professional game played after the 9/11 terror attacks; the healing power of Drew Brees leading the New Orleans Saints to the 2006 NFC Championship Game after the team’s year of exile from the Big Easy following the devastation of Hurricane Katrina; and the redemptive power of Big Papi’s exquisitely-worded message rein forcing the concept of “Boston Strong” to a sellout crowd at Fenway Park before an April 20, 2013 game against the Kansas City Royals, the first home contest for the Red Sox since the marathon bombing five days earlier.
Unlike those crises and other previous catastrophes confronting the United States, including the 1941 attack on Pearl Harbor, the 1963 assassination of President Kennedy and the 2003 beginning of the second Gulf War, the nature of the response required to deal with a global pandemic like COVID-19 prevented professional, college and high school sports from playing their historical role as a morale-boosting shared experience serving as both inspiration and diversion to assuage the collective stress and anxiety of a population suddenly thrust into a new normal – or more accurately, a new abnormal – in the spring of 2020, one of life being lived primarily in isolation under government mandates to “shelter in place.”
Although spoken in a different context, the absence of sports across the American landscape these last three months evokes a statement made in 1929 to legendary Chicago Tribune sports editor Arch Ward by baseball Hall of Famer Rogers Hornsby, whose 23 seasons in MLB included 12 with the St. Louis Cardinals, and who was famous for his obsessive devotion to the game. “People ask me what I do in the winter when there’s no baseball. I’ll tell you what I do. I stare out the window and wait for spring” (www.sabr.org).
Quite simply, March, April and May of 2020 has been a period when millions of Americans have figuratively been staring out their windows and waiting for the advent of “spring” – the rebirth of at least a semblance of normalcy signified in part by the resumption of pro, college and high school sports across the country.
Especially difficult for emotional and sentimental reasons has been the cancellation of winter sports championships and spring sports seasons for scholastic athletes competing purely for the love of the game and glory of their schools. Adequate recognition for the sacrifices that have been made by high schoolers has proved difficult to provide, despite the efforts of state associations, individual schools and others to honor the abruptly disconnected teams and players, including attempts at homage paid by television networks such as ESPN through its series of #SeniorNight segments acknowledging the achievements of student-athletes whose seasons were cut short or altogether eliminated, and creative measures such as the #BeTheLight movement that has swept the country, in which schools have turned on stadium lights for brief periods of time at night, usually 20 minutes in reference to the class of 2020, as a metaphorical beacon of honor for scholastic athletes impacted by the pandemic.
Unfortunately, however, some members of the American public – despite unanimous advocacy by medical experts and universal support by sports leadership for implementation of physical distancing measures involving cancellation of en-mass participation in and in-person viewership of athletics events – have protested the cessation of sports, including in high school athletics some students and parents who either argued against the need for such strategies or who threatened litigation against the decision-makers. Perhaps they simply did not comprehend the severity of the situation or the scope of the physical and economic suffering soon to overwhelm the nation, or they did not understand the number of Americans who would soon fall victim to COVID-19, and or their tunnel vision on the primacy of sports impaired their grasp of the impending sacrifices that would soon be required of thousands of heroic doctors, nurses, first responders, medical researchers and essential workers on the front lines of battling the disease.
If, as many medical experts now argue, a condition precedent to the return of sports even without fans in the stands should be serological (antibody) testing to determine who is immune to COVID-19, along with the approval and widespread deployment of a vaccine for the virus, both of which are unlikely to occur until sometime in 2021, the question has arisen regarding the legal authority – if lawsuits were actually filed by a few disgruntled parents, student-athletes or other constituents over a continued postponement in the fall of 2020 of high school sports – of decision-makers to cancel sports activities.
Protests & Threatened Lawsuits
On Wednesday, March 11, hundreds of students and parents stormed the offices of the Connecticut Interscholastic Athletic Conference (CIAC) to protest the cancellation of the state basketball tournaments and other winter sports championships, a demonstration during which the crowd threw eggs, cups of coffee and soda bottles at the building and its chanting drowned out the efforts of association officials to explain the decision process to the crowd.
“This decision lends a lot of emotion with it,” said Glenn Lungarini, the executive director of the CIAC. “We certainly respect and understand the feelings of our student-athletes, of our parents and of coaches. We respect that they have a voice and students should have an opportunity for their voice to be heard.”
By Wednesday evening, an online petition calling for the reinstatement of all CIAC events without spectators had garnered 90,000 signatures, with the author of the petition stating on the document itself, “[T]o the CIAC, you have broken the hearts of all players, families and coaches involved in this year’s winter sports tournament competition, most notably those seniors who have dedicated their entire lives to their respective sports, many of whom will never play again after this year. This means everything to them. These tournaments are something they cannot get back.”
Although certainly no one could fail to empathize with the student-athletes, parents, coaches and other constituents impacted by the cancellations, the foresight and wisdom of the CIAC in deciding to cancel the winter sports championships likely prevented many individuals from contracting COVID-19 and probably saved numerous lives.
In Italy, one of the countries hardest hit by the coronavirus, immunologist and pre-eminent national spokesperson Dr. Francesco Le Foche (the nation’s equivalent to Dr. Anthony Fauci here in the United States), traced the primary origins of the outbreak of the virus in his country to the Lombardy region and the city of Bergamo, where the hometown soccer club Atalanta BC, on February 19, played in nearby Milan and won by a score of 4-1 at a Champions League match against archrival Valencia CF of Spain.
Attended by many Bergamo fans, but more significantly watched and listened to in town squares, auditoriums, churches, restaurants, bars, homes and other locales by tens of thousands of Bergamo residents, in Dr. Le Foche’s opinion, even if the match had been played in an empty venue, the aggregation of so many groups of people throughout Bergamo gathered close to one another, engaged in manifestations common to sports competitions such as hugging, high-fiving, shouting, celebrating and commiserating, led to “viral reciprocation” that ignited the spread of COVID-19 throughout the region and country, with as of April 22, per the World Health Organization, the Lombardy region accounting for 12,740 of Italy’s 25,085 deaths from the virus (www.who.int).
Across the United States, although engaged in by an extremely small percentage of the nation’s nearly eight million high school student- athletes, protests similar to those against the CIAC, along with a few threats of lawsuits by players and their parents, occurred in other states regarding the postponement or cancellation of winter sports championships and spring sports seasons, including Pennsylvania, Arkansas, Texas, Ohio, Alabama and California, and the spectre exists of possible litigation if COVID-19 necessitates further restrictions on high school sports during the remainder of 2020.
Although no appellate court cases have been decided in federal or state courts that are directly on-point regarding the authority of state actors such as government units (governors, legislatures, counties or municipalities), school boards, state athletics/activities associations or school districts, to postpone or cancel scholastic sports competitions during a pandemic, several rulings have been issued from which a generalized prediction might be deduced regarding the outcome of a lawsuit by student-athletes, parents or other constituents attempting to overturn efforts to protect public health and safety during an event like the coronavirus outbreak.
On April 11, 2020, the day before Easter, in Kelly v. Legislative Coordinating Council, the Kansas Supreme Court struck down a GOP measure by the state legislature allowing in-person church services in violation of coronavirus restrictions issued by Governor Laura Kelly limiting such services, like all other public gatherings, to a maximum of 10 people. Following an unprecedented set of oral arguments conducted via teleconference on Saturday morning, the court issued a 23-page written opinion on Saturday night holding that state law empowered the governor to declare a state of disaster emergency and that “an emergency so declared shall continue until the governor finds that the threat or danger of disaster has passed, or the disaster has been dealt with to the extent that emergency conditions no longer exist.”
The court’s ruling also emphasized that “today’s decision does not decide the religious liberty dimensions of this dispute. All the parties, including the legislative parties, agreed that those arguments and claims are not properly before this court in this action, and must wait to another day for resolution.” The ruling addressed only the governor’s power during an emergency such as the COVID-19 crisis.
On June 26, 2019, in Kunkel v. Northern Kentucky Health Department, the Kentucky Court of Appeals upheld a lower court’s refusal three months earlier to allow an unvaccinated high school basketball player to play in the state tournament during an extensive outbreak of chickenpox at his high school, holding that control measures banning unvaccinated, non-immune students from participating in extracurricular activities were “reasonable, appropriate, and necessary to control the spread of a highly infectious disease.”
Although the court acknowledged that in originally refusing to be vaccinated for religious reasons, the player had properly exercised the “non-medical exemption” right granted to him under state law, the prohibition on his participation in the state tournament was upheld as a public safety measure because of the emergency nature of the outbreak at his school. An interesting postscript to the case is that the student-athlete in question ultimately did contract the chickenpox.
On January 7, 2015, in Phillips v. City of New York, the U.S. Second Circuit Court of Appeals upheld restrictions imposed by the nation’s largest school district on unvaccinated, non-immune students during an outbreak of chickenpox. The appellate court ruled that the unvaccinated students’ rights to free exercise of their religion were outweighed by the public safety threat posed by the outbreak and, therefore, the mandated restrictions were a constitutionally permissible exercise of the state’s police power.
The only U.S. Supreme Court decision relevant to the coronavirus pandemic is its 1905 ruling in Jacobsen v. Massachusetts upholding the authority of states to enact compulsory vaccination laws (with limited medical and non-medical exemptions) because individual liberties must under certain conditions – in the case, the threat posed by smallpox – be subordinated to the common welfare of public health and safety. In its ruling, the Court stated that “[O]f paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.