As the major pro leagues and players’ associations negotiate the resumption of suspended seasons, the COVID-19 pandemic continues to wreak havoc. According to Johns Hopkins University’s coronavirus resource center, there are more than 1.9 million confirmed cases and more than 110,000 deaths attributed to COVID-19 in the United States alone.
In March, leagues shut down because of the pandemic. Three months later, it persists. While social distancing, gathering restrictions and other preventative measures have helped to “flatten the curve,” there is no cure, vaccine or proven treatment. Daily lives have adjusted, but the underlying threat remains.
The urgency to resume games during an unresolved pandemic isn’t surprising. As Sportico’s Eben Novy-Williams details, owners and players have billions of dollars on the line. Many fans also wish to see ordinary life return. Watching sports, whether live or on TV, would restore some semblance of normalcy.
Yet with the return comes a gamble: the unknown effects of COVID-19 over the long-term, and the worry that the virus might ruin the careers of athletes, coaches and referees.
“This virus is new,” said Panagis Galiatsatos, a pulmonary and critical care physician at Johns Hopkins. He cautions that long-term consequences for survivors can only be measured at six months and that, for some afflicted, the virus significantly damages lungs and causes blood clots. Galiatsatos believes that the majority of patients will rebound to baseline, but a minority won’t.
“Think of a fire in a house,” he said. If it burns through the entire house, any kind of rebuilding will look different.”
While pro athletes tend to be young and supremely fit, a bout with COVID-19 may still threaten career-altering effects. Denver Broncos linebacker Von Miller, who was diagnosed with COVID-19 in April and has since recovered, recently told The Washington Post that he can still feel his lungs “trying to get back into shape.” Blood clots, which is among the more troubling complications of COVID-19, could prematurely end athletes’ careers. Long before the pandemic, former Miami Heat power forward Chris Bosh saw his NBA career cut short due to a clotting disorder.
Coaches and referees are even more vulnerable. “Age,” Galiatsatos observes, “is an independent risk factor for worse outcomes from this virus.”
Several NBA head coaches are older than 65, including the San Antonio Spurs’ Gregg Popovich, who is 71, and the Houston Rockets’ Mike D’Antoni, who is 69.
The possibility that COVID-19 will lead to lasting physical damage could become legally significant in the U.S. workplace — including in sports. To that end, sports professionals ought to become familiar with the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
Among its features, the ADA protects those with qualified disabilities from employer discrimination. Qualified disabilities substantially limit a major life activity (such as breathing, walking or working) and tend to be long-term. Temporary health issues, like the common cold or a mild ankle sprain, don’t meet the test. It remains to be seen if some who battle COVID-19 suffer lasting and disabling consequences.
Employers with at least 15 employees must provide reasonable accommodations to ADA-protected employees so that they can perform the essential functions of their jobs. Yet employers aren’t required to alter core job duties. A demand for an accommodation that would essentially change the job will typically be deemed unreasonable.
A pro athlete who suffers long-term lung and other organ damage from COVID-19 might struggle to identify reasonable accommodations. Excellent endurance and full use of the body are ordinarily crucial for playing competitive sports at a high-level.
Eight years ago, former New York Knicks guard Cuttino Mobley sued the Knicks when they wouldn’t let him play with a serious heart condition — hypertrophic cardiomyopathy, which was blamed for the deaths of Hank Gathers and Reggie Lewis — or with his proposed accommodation of an implanted heart defibrillator. The Knicks maintained that multiple cardiologists deemed Mobley unfit to play and that the team possessed discretion on who suits up. The case ultimately settled in 2015.
A coach who suffers lasting damage from COVID-19 might be able to offer a more compelling argument. While coaching can be physically taxing, coaches can generally perform their jobs with less exertion and contact than players. Depending on the sport, referees and umpires fall somewhere in between.
Meanwhile, the ADEA has already surfaced as potentially related to COVID-19 in sports. During an interview with TNT on Thursday, NBA Commissioner Adam Silver suggested that coaches with underlying health issues and those who are older might be barred from the bench. The remarks tracked warnings by the U.S. Centers for Disease Control that persons who are older, as well as those with underlying medical conditions, are at higher risk for severe illness from COVID-19.
Silver’s remarks nonetheless sparked debate on social media, with the insinuation that the 58-year-old attorney was being ageist. It’s important to understand their context. Silver was emphasizing that league demographics go well beyond healthy, young players. Coaches, staff and others are, like players, in mind for locker room and bench safeguards.
Silver’s comments were also clarified by Dallas Mavericks head coach Rick Carlisle, the president of the NBA Coaches Association. In an interview with ESPN, Carlisle said he spoke with Silver and was assured that age is not the sole factor in evaluating potential health and safety measures.
The ADEA could complicate leagues’ efforts to promote the safety of coaches and other older employees. The ADEA protects employees who are 40 or older from employer discrimination on the basis of age. A coach or staff member who believes that he or she was fired, passed over or denied equal access on account of COVID-19 related age concerns could pursue an ADEA claim.
Employers often defend against such claims by arguing, among other defenses, that there is a bona fide occupational qualification necessitating a younger person perform a particular job or task (for example, airlines have raised safety arguments to justify mandatory retirement ages for pilots) or that there are reasonable justifications (underlying health concerns, for instance).
Given this unsettled medical and legal landscape, should pro sports return so soon?
Galiatsatos believes that a return is understandable — to a point. “This is everyone’s first pandemic,” the Johns Hopkins medical professor reminds. “We don’t know of an ending.” Adapting life will require ongoing “trial and error” and patience.
His advice could prove valuable to leagues and the many people who comprise them: They should be prepared to make adjustments along the way.
The law will be watching.
Michael McCann is an attorney, law professor at UNH Franklin and sports law reporter for Sportico, Penske Media’s new sports business publication.