Sports Law

COVID-19’s Legal Impact On The NFL

The National Football League had its first outbreak of Covid-19 going into Week 4 of the league’s 2020 Season. Within a week, the Tennessee Titans had twenty organizational members tested positive for the Virus. It was also revealed that star Quarterback and former NFL Most Valuable Player, Cam Newton, from the New England Patriots tested positive for Covid-19.

The Patriots game against Kansas City was postponed from Sunday to Monday Night Football and the game was played without Newton. However, the Titans game against the Pittsburgh Steelers will now be played in Week 7, as the team recovers from the Virus and is under thorough investigation by the NFL. The WSJ reports pictures of a Titans’ Assistant Coach who tested positive after being captured working with players without a mask. However, ESPN reports that the Titans’ first known positive was a practice squad player whose results became known three days after he was signed.

Under the NFL’s Collective Bargaining Agreement (“CBA”), the NFL has been successful thus far in protecting its teams from Covid-19 exposure and any resulting unfair loss of earnings to players & staff.

The Virus is treated as a football-related injury within the scope of an NFL player’s employment agreement. Active NFL players are protected until their exit physical or within five days of the player’s last game (whichever is later). For that time period, this rule protects players from having their player contracts terminated because of Covid-19, so long as they test negative for Covid-19 within fourteen days of their positive test and follow the NFL’s Covid-19 Safety Rules. The CBA further requires teams to protect player privacy regarding testing positive for the Virus.

The NFL Covid-19 Safety Rules state that even while wearing personal protective equipment (“PPE”), players may not attend: (1) an indoor night club with more than 10 people; (2) an indoor bar with more than 10 people, other than to pick up food; (3) an indoor house party with more than 15 people; (4) an indoor music concert/entertainment event; (5) another professional sporting event; or (6) an event in violation of local, state, or federal social-distancing mandates.

Further, the NFL has intensely screened and tested its players & staff. NFL players & staff must wear PPE, a Proximity Recording tracking device, and maintain physical distancing in club facilities or during travel as required by the Covid-19 Safety Rules. Teams experiencing or exposed to outbreaks, like the Titans, must now use point-of-care testing which delivers results in minutes opposed to days. At-risk teams must be tested prior to players & staff being allowed entry into training facilities. At-risk teams must also test on game day, and continue their standard testing procedures, which requires daily testing outside of game day.

After the Titans’ outbreak, the NFL intensified its Safety Rules for at-risk teams. Such teams will only be allowed virtual meetings, must wear PPE on the field (players & staff), and all players must wear gloves with the exception of the quarterback on his throwing hand. Additionally, the NFL’s memo allows for no team or player gatherings outside of team facilities.

For the most part, the NFL has had success enforcing this behavior, as the CBA’s Safety Rules and NFL Memos threaten players with fines, and termination of non-guaranteed money for not following the rules.  This past Wednesday, the NFL threatened teams, essentially saying that teams not adhering to non-game day rules, such as wearing PPE, could face suspension or forfeit draft picks. Already, coaches Vic Fangio (Denver Broncos), Pete Carroll (Seattle Seahawks), Kyle Shanahan (San Francisco 49ers), Jon Gruden (Las Vegas Raiders), and Sean Payton (New Orleans Saints) have been fined.

On Monday Afternoon, NFL Commissioner, Roger Goodell, echoed these notions of potential consequences and added more Safety Rules for NFL organizations to follow. The league will now require a longer onboarding process for free-agent tryouts, further limit tryouts per week, ban gatherings outside of the club facility, and implement a video monitoring system to ensure compliance with the Safety Rules. Monday’s amendments seem to be linked to the practice squad player who was the first positive test for the Titans.

With the NFL’s Covid-19 Safety Rules and the Titans being the first and only outbreak thus far, one can assume the NFL is doing all it can to honor its obligation to keep its players and staff healthy. However, the NFL is also obliged to honor its television deals with ESPN, Fox, NBC, and CBS.

Annually, the networks collectively pay almost $6 billion for the rights to televise NFL games. Not to mention, the NFL’s advertising revenue during the 2019 regular season amounted to $3.57 billion alone—according to Kantar Media.

According to Yahoo Sports, NFL games have been the top 15 shows on television since the start of the season. Notably, 26.3 million viewers tuned in to watch the Tampa Bay Buccaneers play the New Orleans Saints in Week 1. The top game from Week 3 boasted 22.8 million viewers.

Both of those games were Sunday games. Last week’s highly anticipated Chiefs-Baltimore Ravens game on Monday Night Football had only 14.02 million viewers. Although speculative, the quarterback matchup between two of the best in the game (Patrick Mahomes & Cam Newton), along with two thriving franchises (Chiefs & Patriots), had a chance to surpass the top numbers from Weeks 1 and 3. Not to mention, in the Titans’ game against the Steelers that was set to play Sunday, both teams are currently undefeated.

The Titans’ game postponement and the Patriots playing on Monday without Newton may hurt the NFL’s total viewership. This situation begs the question: Are there any penalties to the NFL for not playing games when scheduled or would playing at a later date be considered substantial performance?

According to the WSJ, “[a] former NFL official said if more than two weeks-worth of games were canceled, the NFL might technically incur a penalty and owe refunds to media partners. But that scenario is unlikely; sports-rights experts say the league and TV partners probably would figure out an economic solution in negotiations over the next round of deals.”

As of right now, the NFL seems to be far from the cancellation of the season. The Minnesota Vikings, who played the Titans in Week 3, somehow went unexposed while the Patriots and Chiefs tested negative outside of Newton & the Chiefs’ practice-team quarterback.

The NFL budgeted for flexibility to move the schedule around in these types of situations. As long as there are no other further outbreaks or season-altering game cancellations, the NFL should continue having bargaining power and the ability to adjust. If the Titans’ outbreak expanded, the NFL’s business arrangement would be more complicated but, for now, it seems that short-term money loss was planned for and will not be overreacted to.

ESPN’s Monday Night Football deal expires after next season. Fox’s Sunday afternoon and Thursday packages, CBS’s Sunday deal, and NBC’s Sunday night deal conclude in 2022.

“The league is looking to lock in long-term contracts sooner rather than later, and deals could be wrapped up during or after this season,” said Patrick Crakes, a former Fox Sports executive. If there is money lost anywhere, the negotiations are a place to figure that out.”

Going forward, the NFL may have another outbreak, which would further complicate things. Reports say that worst-case scenario—outside of cancellation—the season will be extended longer than usual. However, the NFL’s CBA has player-stipends in place if the season were to be canceled.

Further reported, the NFL is considering bubbles for the postseason when fewer teams are involved and the process is easier to manage. In 2020, sports bubbles have been key in successfully mitigating Covid-19 risk for the NBA and NHL.

Regardless of any further cases in the NFL, the NFL has best prepared through the negotiated CBA and the ongoing amendments to its Safety Rules. And with the NFL’s dominance over TV views during its airtimes, TV Networks would likely look to extend its current media-right deals or come up with a good-faith compromise regarding any loss from this season. A renewal would be good for both TV Networks and the NFL.