The return of spectators to watch professional rugby union in New Zealand at the weekend along with the resumption of the PGA tour in the US and horse racing in the UK, all be it behind locked doors, has brought a small sense of hope that sport can once again offer a beacon of light through recent dark times. As English Premier League football also takes its first small steps back in a new landscape, consideration must be given to legal risks that may lie ahead and how these can be minimised by ensuring player and staff welfare remains paramount.
Following government guidance for a phased return of sport including the appointment of a named COVID-19 officer and medical officer, organised training with compliance on social distancing and the need for risk assessment and mitigation plans, the Premier League put in place protocols to be followed for training grounds and match day environments. Against this background governing bodies , professional clubs and their medical staff have to be able to show that their own respective legal duties are appropriately discharged. It is well documented that some groups, such as those from BAME backgrounds or with underlying medical conditions, are more susceptible to contracting COVID-19 and this will have to be taken into account for risk assessment purposes in relation to all staff at the premises. For those who contract COVID-19 and require hospital admission and improve, recovery can be protracted. Therefore a compensation claim for any elite athlete able to establish negligence on the part of his or her employer could potentially be substantial.
To protect against the threat of future litigation governing bodies within professional sport must ensure that their guidance to clubs around assessing and managing risk is in line with government guidance and expert opinion. Plans for international travel or training camps in due course will need to be risk assessed as will training regimes. Professional clubs owe a duty of care to all employees and must have in place policies and protocols to deliver national guidance and ensure that systems are in place for testing , tracing, treating and managing the spread of COVID-19 infection. It is these policies which will be asked for at the outset of any potential claim and the onus is on the employer to show a safe system of work . Many medical staff will have their own indemnity which should cover treating players who may test positive for COVID-19 but they will need to follow their employer's guidance.
One of the most important factors however for clubs and their medical staff is establishing that policies and protocols which are enacted are appropriately followed. The failure by staff to follow their organisation's own protocol is a common allegation in medical malpractice litigation and one which is difficult to defend in court. Where there is any departure from local or national guidance or protocols there must be a clear ,detailed and contemporaneous record of the reason for any such variation. Some professional football clubs have asked players to sign consent forms to evidence that they have read and accept protocols around training and match day arrangements. Whilst practically and evidentially this is useful it remains an obligation for the club to ensure it is doing all it reasonably can to have its staff, both playing and non playing, adhere to those requirements. Note keeping and secure storage of testing and tracing records, pre and post match assessments and medical examinations as well as discussions with players and other staff is more important than ever. All staff must be aware of their own organisation’s policies around record keeping, consent and data sharing.
Millions around the world will welcome the return of sport and all the benefits it brings but those involved at the elite level must be mindful of the legal obligations upon them. With more guidance, protocols and policies in place than ever before in elite sport, evidence of adherence t , or, in rare cases deviation from these documents is fundamental.
The Premier League's "Project Restart" finally sees mission accomplished on Wednesday when - exactly 100 days after it all stopped - the great national escapism of domestic football resumes again.