Restarting Youth Recreational Sports: Are Recreational League Volunteers Subject to COVID-19 Liability?
By: Matthew Nowak* Posted: 03/01/2021
The 2020-2021 NFL, NBA, and NHL seasons were all able to begin this year, as scheduled, despite the COVID-19 pandemic that continues to plague the nation and had originally suspended sports throughout the first half of 2020.[1] Because of the pandemic, leagues have each implemented their own health and safety procedures.[2] College sports also resumed for the 2020-2021 season: for example, the Division I men’s basketball season began in November and also released various health and safety guidelines in order to ensure transparency and reduce hazards for players and staff.[3]
While many were anxiously awaiting news on the return of televised sports, youth recreational sports began to make a return.[4] Youth sports have had the guidance of CDC information as well as state recommendations for health and safety protocols and policies.[5] However, youth sports do not have the access to the same resources that the NCAA and various professional sports leagues do; they cannot offer regular free testing or provide personal protective equipment like money-making leagues can.[6]
Recreational leagues have implemented their own COVID-19 restart policies that promote a safe return to play and seek to limit possibility of spread.[7] Given the potential for health and safety risk in these start-ups, potential liability of organization volunteers has been a topic of concern.[8] In an effort to reduce liability of organizations, some of these leagues also include waivers in their COVID-19 policies.[9] The following provides an analysis of return to play guidelines, a brief discussion of actual organization plans, and an explanation of the liability that volunteers may face.[10]
COVID-19 Guidelines
Since the first case of COVID-19, scientists have continually studied the disease and developed a better, evolving understanding of how it affects younger patients compared to adult patients.[11] Noticing that many organizations, children, and parents were anxious to return to youth sports, the CDC released different considerations and guidance for organizations across the country with the goal of minimizing spread of COVID-19.[12] The CDC’s guidelines stress ways to assess risk, promote behaviors that reduce spread, maintain healthy environments and operations, and prepare for when someone gets sick.[13]
The CDC guidelines encourage continued social distancing, wearing of masks, and regular sanitation.[14] The CDC also gives opinions about the risk of different levels of participation in sports, displaying a risk spectrum in which practice on one’s own is lower risk while travelling for full competition is higher risk.[15] In general, the CDC recommends limiting the number of people gathering together as much as possible, suggesting smaller teams, less observers, and limits on nonessential volunteers.[16]
CDC guidelines, however, are not familiar with the situations of individual communities so understanding state and local guidelines is heavily encouraged during the restart of youth sports.[17] For example, Massachusetts released a detailed document that defined activity organizers and facility operators subject to its guidelines and listed expectations regarding capacity limits at games, hygiene, and facility upkeep.[18] In June of 2020, the Governor of Pennsylvania, Tom Wolf, also provided guidance for resuming sports, noting some important distinctions between yellow and green phase restarts and directing Pennsylvanians to follow CDC guidance closely.[19]
Recreational Sports Organization COVID-19 Plans and Policies
Recreational leagues have largely opted to adopt COVID-19 policies for their most recent seasons.[20] Some league policies are thorough, specifying stage-based plans for advancing through league restarts and providing detailed tracking and reporting procedures.[21] Other league policies are less polished and rely on state guidance and recommendations entirely.[22] Either way, the goal of the policies is to mitigate the potential for spread and simultaneously reduce the potential for liability claims.[23]
Liability for Volunteers
COVID-19 waivers have become popular among leagues and organizations in an attempt to limit any liability that may come with running a recreational league during the pandemic.[24] Organizations, leagues, and facilities without waivers may have to rely on proper and strict adherence to safety procedures in order to avoid liability claims based on COVID-19.[25] Some states have taken steps to shield these organizations from COVID-19 liability, granting immunity from COVID-based lawsuits and ending any question of liability so long as businesses implement appropriate safety measures.[26]
However, organization and league volunteers in other states may still be concerned about whether they are on the hook for liability.[27] Fortunately, federal law offers a hefty shield from liability for volunteers of nonprofit organizations by way of the Volunteer Protection Act of 1997.[28] That law “preempts the laws of any State to the extent that such laws are inconsistent with [the] chapter,” meaning that any State laws that go against the federal law are in essence overruled by the federal equivalent.[29] In general, this liability shield applies so long as the “volunteer [is] acting within the scope of the volunteer’s responsibilities” and “harm was not caused by willful or criminal conduct, gross negligence, reckless misconduct, or a[n] . . . indifference to the rights or safety of the individual harmed.”[30]
But are recreational leagues nonprofit organizations? According to the same Volunteer Protection Act of 1997, nonprofit organizations encompass a wide range of organizations, including those that are “conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes.”[31] Most youth sports organizations may be considered nonprofits given that they are generally considered charitable per Treasury Regulations.[32]
Given that youth organizations can be characterized as nonprofit organizations, volunteers at youth recreational organizations fall under the liability protections afforded by the Volunteer Protection Act.[33] Organization volunteers will not be liable for harm that occurs so long as the volunteers do not act with gross negligence or indifference to the safety of players.[34] The combination of COVID-19 safety policies and protocols adopted by leagues should suffice to exempt volunteers from liability so long as they follow those policies.[35] Therefore, liability will likely only attach when volunteers and organizations fail to cancel events when COVID-19 spread is imminent or when they fail to follow appropriate safety guidelines for preventing spread.[36]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law
[1] See John Breech, 2020 NFL schedule: A look at the regular season home-and-away opponents for all 32 NFL teams, CBS Sports (May 7, 2020), https://www.cbssports.com/nfl/news/2020-nfl-schedule-a-look-at-the-regular-season-home-and-away-opponents-for-all-32-nfl-teams/ (noting NFL’s season start date of September 10, 2020); see also NBA.com Staff, Things you need to know about the 2020-21 NBA season, NBA (Jan. 8, 2021), https://www.nba.com/news/nba-2020-21-season-faq (noting NBA’s season start date of December 22, 2020); see also NHL Public Relations, 2020-21 NHL schedule announced, NHL (Dec. 23, 2020), https://www.nhl.com/news/2020-21-nhl-schedule-announced/c-319875512 (providing NHL’s season start date of January 13, 2021).
[2] See, e.g., NBA.com Staff, supra note 1 (discussing safety protocols for 2020-2021 season such as daily testing and limits on sizes of team traveling parties).
[3] See Brenden Welper, When does the 2020-21 college basketball season start?, NCAA (Nov. 24, 2020), https://www.ncaa.com/news/basketball-men/article/2020-10-19/when-does-2020-21-college-basketball-season-start (stating Division I men’s college basketball began again on November 25, 2020); see also Charlie Henry, NCAA releases health and safety guidelines for college basketball, NCAA (Sep. 25, 2020), https://www.ncaa.org/about/resources/media-center/news/ncaa-releases-health-and-safety-guidelines-college-basketball (discussing release of COVID-19 health and safety guidelines for college basketball).
[4] See Tom Schad, Why youth sports may have an easier time returning to action than the pros, USA Today (May 20, 2020), https://www.usatoday.com/story/sports/2020/05/20/coronavirus-when-safe-youth-sports-return-play/5206202002/ (highlighting return of limited-contact sports in Ohio by May of 2020; discussing return of Texas recreational sports in May and June of 2020; noting Missouri was already playing recreational sports early in May 2020).
[5] See Considerations for Youth Sports, Ctrs. Disease Control (Dec. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/youth-sports.html (discussing how to assess risk of spread from different sports activities; stating how to reduce spread of COVID). See, e.g., Wolf Administration Provides Guidance to Resume High School and Other Summer Sports, Pa. Governor’s Off. (June 10, 2020), https://www.governor.pa.gov/newsroom/wolf-administration-provides-guidance-to-resume-high-school-and-other-summer-sports/ (explaining limits for sports gatherings in Pennsylvania towns in different reopening phases; directing recreational organizations to review CDC guidelines); see, e.g., Massachusetts Executive Office of Energy and Environmental Affairs, Workplace Safety and Reopening Standards for Businesses and Other Entities Providing Youth and Adult Amateur Sports Activities, The Commonwealth of Massachusetts at 4 (Jan. 22, 2021), https://www.mass.gov/doc/safety-standards-for-youth-and-adult-amateur-sports-activities-phase-iii-step-i-effective/download (identifying categorization of sports at different risk levels; discussing state-wide safety procedures and recommendations for restarting amateur sports activities); see, e.g., Youth League and Recreational Sports Guidance Strengthened to Reduce Risk of COVID-19 Outbreaks, Vermont Agency of Commerce and Community Development (Oct. 27, 2020), https://accd.vermont.gov/press-releases/youth-league-and-recreational-sports-guidance-strengthened-reduce-risk-covid-19 (discussing limits on spectators, discouraging social events, and prohibiting out-of-state travel for recreational sports); see, e.g., Sports Safety Guidance, Il. Dept. of Pub. Health (Jan. 22, 2021), https://www.dph.illinois.gov/covid19/community-guidance/sports-safety-guidance (explaining risk levels for different sports; discussing general health and safety guidelines).
[6] See Schad, supra note 4 (“A local recreational league does not have access to thousands of coronavirus tests, or extensive personal protective equipment. And the varying transmission risks from state to state, and sport to sport, will likely lead to a patchwork system in which individual leagues are left to figure out whether they can safely restart, and parents are left to decide whether their kids can participate.”).
[7] See, e.g., COVID-19 Policy for Colonial Soccer Club, Colonial Soccer Club (Sep. 2, 2020), https://bsbproduction.s3.amazonaws.com/portals/51374/docs/covid-19%20policy%20for%20colonial%20soccer%20club%20.pdf (discussing Colonial Soccer Club’s placement in Montgomery County, Pennsylvania; detailing expectations of coaches, players, and parents amidst sports restart; explaining restart phases and permitted activities during each phase); see, e.g., Patrick Bailey, COVID-19 Restart Plan for Travel Soccer, Whitpain Recreation Ass’n (Oct. 12, 2020), http://www.wrasports.org/site/ClientSite/article/3471371 (noting Whitpain’s location in Montgomery County, Pennsylvania; discussing Whitpain’s return to play protocols); see, e.g., Arkansas United Soccer Club Covid 19 Guidelines, Ak. United Soccer Club, https://www.arkansasunited.com/programs/recreational (last visited Feb. 22, 2021) (“We will follow all the guidelines and limits set in place by the Arkansas Department of Health.”); see, e.g., Youth Sports League Rules, Parker Colorado Parks and Recreation, https://parkerrec.com/1586/Youth-Sports-League-Rules (last visited Feb. 22, 2021) (providing links to “COVID Safety Guidelines” for individual sports such as basketball and soccer).
[8] See Lori Windolf Crispo, Sports and COVID-19 Waivers: A Necessary Evil?, Risk Placement Services (Oct. 19, 2020), https://www.rpsins.com/knowledge-center/items/sports-and-covid-19-waivers-a-necessary-evil/ (discussing possibility of COVID liability claims against organizations; noting efforts by leagues to minimize liability).
[9] See id. (noting increased use of waivers to avoid liability). See, e.g, COVID-19 Policy for Colonial Soccer Club, supra note 7 (attaching “consent waiver” to organization’s COVID-19 policy; stating that signers of waiver agree to “indemnify and hold Colonial Soccer, its officers, directors and volunteers, and the coaches and assistant coaches harmless against any claims”).
[10] For further discussion of COVID-19 guidelines, see infra notes 11-19 and accompanying text. For further discussion of recreational league COVID-19 policies, see infra notes 20-23 and accompanying text. For further discussion of liability for volunteers, see infra notes 24-36 and accompanying text.
[11] See Bryna Rosen Misiura, COVID-19 and Youth Sports: Safety and Liability Issues, The National Law Review (Sep. 16, 2020), https://www.natlawreview.com/article/covid-19-and-youth-sports-safety-and-liability-issues (discussing growing and evolving literature on COVID-19).
[12] See Considerations for Youth Sports, supra note 5 (“As some communities in the United States begin or continue to hold youth sports activities, CDC offers the following considerations to help prevent the spread of COVID-19.”).
[13] See id. (offering deep list of suggestions for youth organizations to promote healthy behaviors and prepare for unexpected cases of COVID-19).
[14] See id. (noting strategies to promote physical distancing such as limiting use of carpools; recommending proper use of masks; promoting regular cleaning of hands and discouraging spitting during sports activities).
[15] See Playing Sports, CDC (Dec. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/playing-sports.html (creating spectrum of low to high risk sports activities in which lower contact and lower intensity activities are lower risk while activities with greater intensity and more people are higher risk).
[16] See Considerations for Youth Sports, supra note 5 (noting smaller crowds between players and spectators may reduce likelihood of spread).
[17] See id. (highlighting how individual communities are unique; stating that state and local health officials are dependable sources to consider when discussing situations in different communities; noting that CDC recommendations are meant to supplement state and local safety rules and regulations).
[18] See Massachusetts Executive Office of Energy and Environmental Affairs, supra note 5, at 2, 7-8, 12-14 (defining activity organizers and facility operators; noting that guidelines do not apply to professional or collegiate sports; stating capacity limitations for outdoor and indoor competitions; noting how to comply with accessing and utilizing facilities).
[19] See Wolf Administration Provides Guidance to Resume High School and Other Summer Sports, supra note 5 (explaining sports including hockey, football, soccer, basketball, and baseball could resume games where the leagues and teams were in areas of Pennsylvania “in the green phase;” emphasizing that league and team staff are required to review CDC guidance and adhere to guidelines as best as possible).
[20] For further discussion of recreational league COVID-19 policies generally, see supra note 7 and accompanying text.
[21] See COVID-19 Policy for Colonial Soccer Club, supra note 7, at 3-6 (noting four-stage return to play plan; explaining responsibilities of club members and parents in reporting and tracking COVID-19 exposures and positive tests). The Colonial Soccer Club’s policy notes that the four-stage process is the process recommended by EPYSA (Eastern Pennsylvania Youth Soccer Association). Id. at 1.
[22] See Arkansas United Soccer Club Covid 19 Guidelines, supra note 7 (stating that soccer club follows Arkansas Department of Health’s guidelines).
[23] See, e.g., COVID-19 Policy for Colonial Soccer Club, supra note 7, at 9-13 (establishing for each team a role of COVID-19 manager, who follows COVID-19 exposure incidents of teams; discussing limitations and changes to league scheduling to minimize COVID-19 risk; explaining assumption of risk statement and waiver).
[24] See Windolf Crispo, supra note 8 (discussing popularity of COVID-19 liability waivers with sports leagues).
[25] See id. (explaining non-use of waivers does not automatically open organizations to liability).
[26] See id. (stating “Alabama, Arizona, Arkansas, Georgia, Iowa, Kansas, Louisiana, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wyoming” all have passed or proposed some sort of immunity from COVID-based lawsuits for businesses; noting that businesses will only be immune from liability if they follow mandates and implement safety procedures).
[27] See Windolf Crispo, supra note 8 (discussing organizations’ initiative to safeguard from liability by requiring waivers).
[28] See 42 U.S.C. § 14503(a) (“[N]o volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity.”); see also John M. Sadler, Amateur Sports and Coronavirus (COVID-19): How To Return to Play, Sadler Sports (Aug. 11, 2020), https://www.sadlersports.com/coronavirus-risk-management-in-sports/ (noting federal statue protecting volunteers from liability is known as Volunteer Protection Act).
[29] See 42 U.S.C. § 14502(a) (stating State laws in contrast with Volunteer Protection Act are preempted). This section of the United States Code also states that State laws providing additional liability protection for volunteers are not be preempted. Id.
[30] See 42 U.S.C. § 14503(a), (c) (stating acts within scope of responsibilities are protected so long as they were not grossly negligent or indifferent to safety of others).
[31] See 42 U.S.C. § 14505(4)(B) (defining broad understanding of nonprofit organizations). The United States Code also specifies that a nonprofit organization cannot “practice any action which constitutes a hate crime.” Id. Organizations exempt under 26 U.S.C. § 501(a) also qualify as nonprofit organizations. Id. at (A).
[32] See Youth Sports Organizations, Non Profit Advisor Group, https://starta501c3.org/project/youth-athletic/ (last visited Feb. 22, 2021) (“Youth athletic and sports organizations are generally considered charitable, as defined in Treas. Reg. 1.501(c)(3)-1(d)(2).”).
[33] For further discussion of liability shield for nonprofit volunteers, see supra note 28 and accompanying text. For further discussion of youth sports organizations as nonprofits, see supra notes 31-32 and accompanying text.
[34] For further discussion of when liability shield does and does not apply to nonprofit volunteers, see supra notes 28-30.
[35] See generally COVID-19 Policy for Colonial Soccer Club, supra note 7 (discussing responsibilities of coaches and volunteers for following COVID-19 procedures including taking temperatures before games, wearing masks, maintaining social distance, and monitoring COVID-19 symptoms). For further discussion of when volunteers are still liable for harm, see supra note 30 and accompanying text.
[36] See Sadler, supra note 28 (discussing liability risk for sports organizations based on failures to take steps to prevent spread of COVID-19). For further discussion of safety guidelines, see supra notes 11-19 and accompanying text.
