Archive for the ‘Risk Management’ Category

COVID-19 and Return-to-Play Webinar

Sadler Sports Insurance and Go4Ellis Webinar Recording

Sadler Sports Insurance partnered with Go4Ellis (on demand per diem access to athletic trainers) to produce a fantastic webinar on COVID-19 and return to sports. It was very well received by the live audience. Many of the participants said they received real value for the first time in the form of an actionable return to sports plan.

In the webinar, John Sadler covers the major COVID-19 issues to be considered:

  • Liability risk for transmission
  • Difficulty in proving a case
  • Legal defenses that are available
  • COVID-19 waiver/release
  • COVID-19 warning signage
  • Will General Liability cover a transmission lawsuit?

Coronavirus protocol in sports organizationsEllis Mair, the chief medical officer for Go4Ellis, presented the role that an athletic trainer can provide as you factor the COVID-19 risks into planning and implementation of your events. Athletic trainers are not only experts in sports injuries, but also in dealing with diseases such as COVID-19. Their ability to be your COVID Coordinator in executing the safest events possible could be immeasurable.

Below is the Zoom meeting link to the the previously-recorded webinar:

https://us02web.zoom.us/rec/share/4cFRLIPRx15OGJX_9m_gV5J5Fau8eaa80CIc_vUKyR5Rnkkg0NT1o4R624XHsR_m


Outline of Topics Covered

COVID-19 Risk Assessment

Panelists

Objectives

Follow the Lead of Authority Sources

Risk Identification Checklist

  • Sport
  • Age Group
  • Event Type
  • Expected Attendance
  • Location
  • Local or Interstate

Insurance and Liability

  • Legal Theories of Recovery for COVID-19 Transmission
  • Elements Of COVID-19 Negligence Claim
  • Legal Risk Compared with Child Abuse or Concussions
  • Does General Liability Cover COVID-19 Transmission Lawsuits?
  • COVID-19 Waiver/Release
  • COVID-19 Warning Signage
  • Other Legal Defenses
  • Homeowners Liability and Personal Umbrella

How Hiring an Athletic Trainer helps Sports Organizations Execute Mitigation Strategies and Support Event Operators

  • COVID Coordinator
  • Pre-event Communication
  • PPE
  • Temperature Screening
  • Monitoring
  • State / Local Compliance Documentation
  • Participant Evaluation And Response

Q&A

 

Amateur Sports and Coronavirus (COVID-19): How To Return to Play

Updated 8/11/2020 – See blue font areas for recent updates. Returning visitors should always refresh the page to see the latest changes.

Applying Risk Management to Address Coronavirus Risk to Allow Your Organization to Re-Open and Return to Play

The coronavirus threat and the ultimate impact on society and the sports community is still unknown at this time. The situation is fluid with new information being released almost hourly regarding the progression of the COVID-19 outbreak and what steps various sports organizations are taking to address the situation. The trends have swung from mitigation to cancellation and now back to mitigation again with the planned reopening of sports in many states.

From a pure liability perspective for the reasons to be explained, COVID-19 currently poses a much lesser severity risk (risk of large dollar payout) to sports organizations than the traditional severity risks of child abuse / molestation and concussion / brain Injury. However, in other respects, COVID-19 presents unprecedented challenges due to the elements of societal fear, unknown outcome, incorrect and/or changing information, unparalleled role of media, red state / blue state politics, involvement of government regulation in return to play, threat of financial failure due to shut down and loss of registrations, and mitigation techniques that touch almost every aspect of operations and demand utmost management attention. Nevertheless, any significant threat, including COVID-19, can be addressed with the application of the risk management process and risk managers and sports organizations are rising to the occasion.

There is safety in following the lead of authority sources

In order to prove negligence in failure to cancel or mitigate risks, courts will look to authority sources to determine the standard of care that is owed to sports organization staff, participants, and spectators. Therefore, sports organizations should pay close attention to the mandatory governmental regulations and/or recommended guidelines published by the various authority sources:

  • Federal/State/Local government: Constantly monitor governmental health agencies such as U.S. Center for Disease Control and Prevention (CDC), your state’s public health department and other county/local authorities.
  • CDC Considerations For Youth Sports: The CDC published guidelines for return to play for youth sports on May 19 of 2020 in a document entitled Considerations For Youth Sports. However, the CDC states that these considerations should be supplemented by more specific instructions from state and local governments including the timing of permissible return to play.
  • School Districts: School districts provide localized advice based on the levels of coronavirus risk in a particular community. However, the risk components of school sports may be different than those posed by local, community-based sports organizations.
  • Sports Governing And Sanctioning Bodies: Monitor the websites, emails, and social media from the sports governing and sanctioning bodies that oversee your sport. Examples of sports governing and sanctioning bodies include NFHS, USA Softball, and USSSA.

Potential liability exposure exists for sports organizations

Below are the most common legal theories of recovery for a claimant who has been allegedly exposed to coronavirus with resulting sickness or death:

  1. Negligent failure to cancel event resulting in COVID-19 transmission.
  2. Negligent failure to take mitigation steps if events are not cancelled resulting in COVID-19 transmission.

It’s one thing to allege negligence, but it must be proved by showing:

  1. Duty owed to the claimant (may be different for participants vs spectators)
  2. Breach of duty by not following mandatory regulations and/or guidelines on cancellation or mitigation from sources as CDC, state health departments,  county/local authorities, and sports governing bodies.
  3. Breach of duty was the proximate cause of the sickness. Proving causation may be a tall order according to law professor Benjamin Zipurski of Fordham University. Zipurski states that a claimant would need to prove they did not have a virus before the event, they did not come in contact with anyone or any shared spaces on the way to the event, and they did not come in contact with anyone or any shared spaces after the event. This is further complicated by the long incubation period of COVID-19 which may be up to two weeks.  On the other hand, it may be possible to trace the transmission of  COVID-19 if a cluster of multiple people who attended the same event become infected. But despite media publicity over new smart phone COVID exposure tracking apps, it is unlikely that these initiatives will get off the ground due to low voluntary participation as well as concerns over privacy intrusions.
  4. Damages (medical bills, loss of income, loss of companionship, disability, pain and suffering, etc.)

In order to prevail, the claimant must prove all 4 elements listed above. Failure to prove just one element will result in failure to prove negligence.

COVID liability frequency and severity risk and as compared to child sex abuse and brain injury

So far, the frequency risk (risk of many small lawsuits being filed) of COVID lawsuits is low since there are no known COVID transmission lawsuits that have been filed against sports organizations; however, this may change with the return to play phase. As regards the severity potential (risk of large dollar payout), even though COVID transmission can result in serious injury or death to one or multiple persons, it is believed by most insurance industry experts that the potential for large payouts is low due to the difficulties in proving the proximate causation that is required to prevail in a negligence lawsuit. A common thought among these experts is that COVID liability poses a much lower severity risk than sex abuse / molestation or concussion / brain injury. Also, a COVID claimant is less likely to be angry and seeking revenge since sports organizations, despite their best mitigation efforts, have less control over COVID as compared to preventing child sexual abuse or second impact syndrome and resulting brain injury, for example. In addition, there is a much stronger case for assumption of risk with COVID as compared to child sex abuse and brain injury.

However, based on sports administrator feedback, it appears that some administrators fear the COVID liability risk even more than child sexual abuse or brain injury even if such fears may be unfounded. Perhaps the reason is because media outlets remind the public various times throughout the day about new COVID cases and death counts and how society will never be the same. Just image how fears over child sexual abuse and brain injury would be magnified if the media were to constantly remind parents of the daily counts of child sex abuse and concussion incidents.

Legal Defenses To COVID-19 Lawsuits

In order to prove a claim of negligence, the plaintiff must prevail on all 4 elements listed above. As discussed, the element of proximate cause may be difficult to prove in the case of a COVID-19 transmission allegation.

But there are also the following legal defenses that are available:

  • Waiver/Release With COVID-19 Language – Existing waiver/release agreements for minors and adults should be modified to add language releasing the sports organization from liability resulting from illness such as communicable diseases including COVID-19. Or, a specific COVID-19 waiver/release may be used. In some states, a waiver/release may result in lawsuit dismissal by summary judgment depending on if the participant is an adult or minor. Even if the waiver does not result in a quick dismissal, they often reduce the amount of damages owed. See our blog entitled Are Waivers Worth The Paper They Are Written On?
  • Assumption Of Risk – Spectators and participants assume a known risk when they decide to attend or participate in a sporting event. Who has not been warned of the risks of coronavirus by the media? An assumption of risk defense can be strengthened by a COVID-19 waiver/release signed by all participants/parents as well as COVID-19 warning signage.
  • Contributory or Comparative Negligence – Spectators and participants may share in the negligence to the extent that they did not practice personal discipline in taking precautions against transmission. This may result in a total bar or an offset against damages depending on state law.
  • Federal Volunteer Protection Act – The federal Volunteer Protection Act of 1997 provides certain immunity for volunteers of not for profit associations. There are also state law versions which are preempted by the federal act to the extent that the federal act provides stronger protections. These immunity acts do not apply to the extent of gross negligence or other wanton or willful behavior
  • Federal Or State COVID-19 Immunity – There is talk of an imminent federal COVID-19 immunity act to protect businesses including sports organizations from the liability risk of opening up operations. The Following States have some form of COVID immunity whether by statute or executive order; AL, AR, IA, KS, LA, MS, NC, OK, UT and WY. These statutes and executive orders will provide much needed relief but will exempt willful or reckless disregard for COVID-19 mitigation best practices.

Regardless of the difficulties of a claimant in proving negligence and the existence of these defenses, we live in a litigation happy society and even frivolous litigation can result in legal defense costs.

Does General Liability insurance provide coverage for sports organization that are sued for failure to cancel or mitigate?

Here is the short answer:

No one can say with 100% certainty whether a General Liability policy will pay for part or all of a COVID-19 transmission lawsuit. The insurance carriers did not contemplate that this policy would pay for liability arising from a pandemic. But whether the carrier will be forced to respond and pay for a legal defense is a complicated matter. The answer depends on a number of factors including the exact causes of action alleged in the lawsuit papers, the facts in a particular case, the existence of certain exclusions in the policy, and how the various courts and jurisdictions interpret the policy provisions.

If your policy does not include a specific exclusion for communicable disease, virus, or pandemic, you have a much better chance that your carrier will provide legal defense and coverage according to several sports insurance industry claims managers. Insurance carriers are cautious and often provide legal defense under a reservation of rights letter due to fears over a bad faith refusal to settle lawsuit and the associated multiplied and punitive damages. However, even without the communicable disease exclusion, carriers will likely refuse to defend if a sports organization engages in blatantly negligent behavior such as returning to play before clearance by state and local authorities and failure to implement the most basic mitigation best practices.

In addition, if just one of the causes of action in the lawsuit papers is potentially covered, the insurance carrier will normally be required to provide a legal defense even if any settlement or adverse jury verdict is not completely covered. And a legal defense is likely to be the most important element in a COVID-19 transmission lawsuit since as it will be extremely difficult to prove negligence for the reasons stated above.

Here is the long answer:

In a very brief and over-simplified summary, the General Liability policy responds to certain lawsuits alleging “bodily injury”  or “property damage” caused by an “occurrence” and not otherwise excluded. COVID-19 definitely falls under the definition of “bodily injury” which includes sickness.  But whether a COVID transmission event is an “occurrence” could be subject to debate. Generally, an “occurrence” is similar to an accident and is something that is not intended or expected. Some courts may rule that a transmission during an event in the middle of a pandemic does not fall under the policy definition of an “occurrence” if the outcome would be expected. Other courts may rule that there is an “occurrence” because the transmission was accidental and unintended even if the decision to hold the event was a poor one.

If the court finds that a COVID transmission incident is an “occurrence”, coverage then hinges on whether an exclusion applies. An exclusion is a provision that takes away coverage. To follow are some potential exclusions that could result in a claim denial:

  • Communicable Disease, Pandemic, Or Virus Exclusion – At the present time, most sports General Liability policies do not include such exclusions. However, moving forward, expect most insurance carriers to add one of these exclusions on policy renewals in an attempt to clarify their intent to not cover liability arising from a pandemic.
  • Intentional Injury Exclusion –  The intentional injury exclusion applies to “bodily injury” (includes sickness) that is expected or intended. If the sports organization moves forward with practice or play despite a mandate to the contrary from the state or municipality or without following recommended mitigation techniques, some authorities have suggested that it is possible that the insurance carrier may deny the claim citing the intentional injury exclusion. This is based on if a reasonable person could or should expect the virus to spread because of actions taken or decisions made. However, according to IRMI, such an interpretation may not be appropriate as “in order to rely on this exclusion, the insurer must demonstrate bodily injury or property damage was expected or intended by the insured—whether the act itself was intentional is not the measure of this exclusion.”
  • Pollution Exclusion – Some courts have ruled that a virus is a “pollutant” for the purposes of the pollution exclusion. However, the majority view is that a naturally occurring contaminant such as a virus is not a “pollutant” because it does not fall under the category of environmental pollution.

Homeowners Liability And Personal Umbrella Insurance May Provide Coverage For Individual Volunteers

Homeowners Liability and Personal Umbrella policies usually cover insureds while conducting duties as a volunteer for not for profit sports organizations. If these policies don’t include an applicable communicable disease or similar exclusion, it is possible that they are a source of legal defense and would pay for any settlement or adverse jury verdict. Most personal policies do include some type of communicable disease exclusion, but many are worded to apply only to situations where the insured was personally the source of the transmission of the communicable disease. Of course, that is usually not the case where an insured is a volunteer coach or administrator and is shot gunned into a lawsuit. The carriers may also argue that the transfer of a communicable disease was not an “accident” or was an “intentional injury” but these are not likely the majority view. In any event, any COVID claim naming an individual volunteer staff member or administrator should be turned in to any existing Homeowners Liability or Personal Umbrella carriers.

Different levels of transmission risk factors for different sports organizations

The following factors should be considered when a sports organization makes decisions regarding cancellation or how to best mitigate coronavirus risks. Know the risk factors for your particular sports organization and tailor a plan to fit your specific needs.

  • What is happening in your specific community. If coronavirus is present or widespread in your community, you should increase your level of aggressiveness in applying risk management.
  • Type of competition: the risk of transmission increases from lower to higher as organizations move from virtual conditioning and training at home under instructions from a coach; team-based practice with social distancing and no sharing of equipment; team-based practice without social distancing and sharing of equipment; within-team scrimmaging; competition with teams from within your geographic area; and competition between teams from different geographic regions
  • Analyze separately the risks from the perspective of staff, participants, spectators, and third-party vendors. Mitigation plans may need to be customized for each group.
  • According to the CDC, the risks to older adults and those with serious chronic medical conditions are elevated. According to U.S News & World Report, children and teens are at a lower risk and typically have milder symptoms or none at all and the death rate is much lower than middle aged and older populations. Exposure transmission to seniors may occur in their role as sports participants, coaches, spectators, or parent/guardians. Mitigation plans should be adopted to protect those with the highest level of risk.
  • Playing locally vs travel: Local play entails less transmission risk than air, bus, or train travel. Staff and participant travel to out-of-town conferences or competitions is a higher risk activity.
  • Spectators: Higher spectator transmission rates can be expected when spectators are indoors, confined in a small enclosed space, seniors, or have compromised immune systems.
  • Crowd size: The larger the crowd size, the greater the transmission risk. Sports organizations may adopt guidelines to reduce risk by limiting attendance to one person per participant; maintaining separate entry and exit points; not allowing congregating at common areas such as concessions, bathrooms, and information boards; and enforcing social distancing guidelines of 6 feet between non family members.
  • Sport specific player contact: Some sports have more spacing and less close contact between players such as baseball, softball, cross country, track & field, tennis and golf. Other sports such as basketball, soccer, football, and lacrosse have much closer spacing and player contact. Sports with higher levels of close contact should limit such exposure during practices to a certain number of minutes and should concentrate on conditioning and drills that don’t require close contact.
  • Sport specific shared equipment: Different sports have different levels of touching shared equipment followed by the touching of participant mouth, nose, or eyes.
  • Player ages: Younger age groups have more difficulty in following instructions about social distancing; touching mouth, nose, or eyes; sharing water bottles; etc.
  • Size of team: Teams with higher numbers of participants have increased transmission risks. Consider decreasing team size or breaking up teams into pods that have limited close contact with other pods within the same team.

Sample risk management guidelines to mitigate COVID risks

(Note: references to staff means coaches, team specific staff, and general league staff members which may include directors/officers, umpires/referees, gate workers, scorekeepers, concessions, field maintenance, janitorial, etc.)

Manage

  • COVID Coordinator: Appoint a COVID coordinator to oversee all aspects of the COVID risk management plan including development from appropriate resources, implementation, monitoring, updates/changes, communications, staff training, regulatory compliance, and answering player, parent, and staff questions about COVID concerns.
  • Compliance With State And Local Guidelines: Make sure that the sports organization is in compliance with all state and local COVID guidelines including return to play dates and maximum group sizes.
  • Training: Train all players and staff on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette.
  • COVID Self-Reporting: Be familiar with and comply with all regulatory requirements, privacy policies, and information sharing regulations as regards COVID-19 self reporting of symptoms or positive tests by players or staff as well as by related family members with whom they have had close contact.
  • Spread Out Scheduling Of Practice And Games: There should be enough time between practices and games to allow one group to vacate the premises before the next group enters as well as for proper sanitation of surfaces and other equipment.
  • Back Up Staff: Have a back up staffing plan in the event that staff members become infected.
  • High Risk Staff: Limit staff with underlying conditions from attending or working the sporting event. (Source: TX Checklist For Youth Sports Operators.)
  • Documentation: In the event of COVID transmission litigation, the sports organization must be able to provide written documentation of the implementation of the COVID risk management program.

Communications

  • Pre-Season: Sports programs should disseminate information to all staff, players, parents, and spectators about the COVID risk and practices that should be undertaken to mitigate risks. Information should be disseminated by way of email, social media, coach talks, and public announcements.
  • Self-Reporting Of COVID Symptoms: Be prepared to disseminate information to concerned parties about any COVID-19 incident while complying with all regulatory requirements and privacy laws.
  •  Staff Meetings: Consider cancelling in-person staff meetings and replace with Zoom meetings or conferencing by telephone.
  • Risks To Seniors: Provide notice to all parents or guardians of the enhanced risks of players being in direct contact or anyone 65 or older for 14 days after participating in a sport event or practice. (Source: TX Checklist For Youth Sports Operators.)

Pre-Event

  • Stay Home When Appropriate: Players, staff, and spectators should be instructed in communications to stay home when they are showing symptoms of COVID-19, have a temperature over 100.4 Fahrenheit, have tested positive for COVID-19, or have had close contact with a person with COVID-19.
  • Symptom Checking: Conduct pre-event observation and/or questioning of all players and staff about the existence of any COVID symptoms including cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, loss of taste or smell, diarrhea, feeling feverish or a measured temperature greater than or equal to 100.4 degrees Fahrenheit, or known close contact with person who is lab confirmed to have COVID-19. (Source: TX Checklist For Youth Sports Operators.)
  • Temperature Check: Players, staff, and spectators should be asked to take their own temperature before leaving the house and they should stay at home with any reading of 100.4 Fahrenheit or higher according to CDC definitions of reportable illnesses for contagious disease. The sports organization can assign a staff member to use an infrared non-contact forehead thermometer to take the temperature of all players and staff before they enter the field/facility. Any reading of 100.4 or higher should result in a denial of entry. These thermometers are now commonly available for under $100. (Note: The CDC Considerations for Youth Sports guidelines no longer suggest taking temperature checks at home or on location but this still may be a requirement of state or local governments.)
  • No Congregation: Players and team staff should not congregate prior to a practice or competition event and should stay in cars until right before warm ups for the practice or competition and should avoid other groups that are leaving the prior event.
  • Team Check In Process:  Team staff and players should continue social distancing during the team check in process for competitions. There should be a single point of contact for teams during events.
  • Disinfect Hard Surfaces: When arriving at team seating or sideline areas, team staff should disinfect all hard surfaces such as benches, railings, and equipment racks.

Post-Event

  • Cleaning: Team staff should clean and dispose of all trash from player seating or sideline areas when departing practice or games.
  • No Congregation: Players and team staff should quickly exit the practice or playing location after the event and go directly to their cars without congregating with other teams or spectators in common areas.

Social Distancing

  • 6 Ft. Rule: All players, staff, and spectators should practice social distancing of 6 ft. whenever possible, especially in common areas.
  • Pre And Post Event Social Distancing: Social distancing should be practiced by players and staff during all locker room activities, instruction, explanation of rules, pre-game strategy, and post game briefing sessions.
  • Restructure Practices: Restructure practices to greatest extent possible to concentrate of conditioning, drills, skill building and limit close contact to a specified number of minutes during simulation drills and scrimmages.
  • Breaking Up Large Teams: Consider breaking up large teams into pods during practice that have limited close contact with other pods on the same team.
  • Pre-Game Warm Ups: During pre-game, players and staff should maintain the 6 ft. distance if possible during warm ups and drills and should only have close contact during actual competition.
  • Social Distancing Monitors: Identify adult staff members to help maintain social distancing between players, staff, and spectators (if allowed by state law).
  •  No Handshakes/Celebrations: Players and staff should refrain from handshakes, high fives, fist/elbow bumps, chest bumps, group celebrations, etc.
  • Waiting In Cars: Players and team staff should wait in their cars with parents/guardians until just before the beginning of a practice, warm-up or game instead of assembling in groups.
  • Car Pools: Discourage the use of car pools to transport participants who do not live in the same household.
  • Spectator Social Distancing: Spectators should follow social distancing of 6 ft. whenever possible and should avoid being in groups of greater than 10 persons. Where social distancing is not feasible, spectators should wear face coverings and wash hands or use hand sanitizer (60% alcohol) frequently.
  •  Limiting Spectator Attendance: Some sports organizations may choose to limit spectator risk by limiting attendance to essential staff and limited family members.
  • Off Site Activities: Avoid off site team activity events such as swimming, team meals, bowling, watching professional teams, etc.

Personal Protective Equipment (PPE) And Personal Disinfectants

  • Educate: Teach players and staff and reinforce the use of wearing cloth face coverings. Wearing face coverings is most critical when physical distancing is difficult.
  • Face Coverings For Coaches And Staff: All staff should wear PPE such as face coverings and gloves whenever applicable. (Note: CDC Considerations For Youth Sports does not suggest the use of gloves except for when removing garbage bags or disposing of trash.)
  • Player Face Coverings: Players should wear face coverings in close contact areas and situations where applicable. Players should be allowed to wear face coverings during competition if they choose to do so as long as they don’t compromise the safety of any and all participants.
  • Parent / Spectator Face Coverings: Parents and spectators should wear face coverings whenever they are at the facility and in close contact with a non family member.
  • Don’t Touch Face: All persons wearing face coverings should be reminded to not touch their face covering and to wash their hands and/or use hand sanitizer (60% alcohol) frequently.
  • Player Provided Hand Sanitizer And Wipes: Parents should provide all players with hand sanitizer for use between play periods as well as antibacterial wipes for disinfecting player provided equipment.
  • Staff Provided Hand Sanitizer And Wipes: Staff members should provide their own hand sanitizer for frequent use and antibacterial wipes for disinfecting hard surfaces and shared equipment.

Playing Equipment

  •  Spacing Of Player Equipment: Player equipment should be spaced accordingly to prevent close contact.
  • Player Provided Equipment: Players should be encouraged to bring their own equipment and to not share with others. Player provided equipment should be kept separate and in individual bags or containers.
  • Limit Team Shared Equipment: The use of team shared equipment (e.g. protective gear, balls, bats, etc.) should be limited whenever possible and should be sanitized after each use if possible. Otherwise, limit use of team shared supplies and equipment to one group of players at a time and sanitize between use.
  • Water Bottles: Water and sports drink jugs should no longer be provided by sports facilities or sports organizations. Players and staff should bring their own water bottles to all team activities to help to reduce transmission risk. Individuals should take their own water bottles home each night for cleaning and sanitation. Visiting teams should also bring their own water bottles.

Facilities

  • Foot Traffic Control: Larger facilities should encourage social distancing by designing multiple foot traffic entry and exit points.
  • Water Fountains: Should be closed with tape and signage stating that they are not to be used. Or, if they are to remain in service, should be sanitized at least hourly during use but participants should be encouraged to bring their own water bottles.
  • Concessions: Concessions should be discontinued unless the sports organization is in a position to strictly enforce precautions. Precautions include 6 ft spacing markers in concession lines between customers; staff instructed to not report to duty if they don’t feel well, have symptoms, or have a temperature; staff required to wear gloves and face masks; steps taken to prevent cross contamination; and frequent sanitation of all surfaces.
  • Rest Rooms: Small rest rooms should limit occupancy to one person at a time and larger rest rooms should provide 6 ft distance markings.
  • Cleaning/Disinfecting: Sports facility owners/operators and team staff should use disposable disinfectant wipes on all training areas, locker rooms, equipment, common areas, door handles, railings, water fountains, seating, bathrooms, etc. on a regular basis.
  • Hand Washing And Hand Sanitizer Stations: Facilities should provide hand washing stations that are foot activated and hand sanitizer (60% alcohol) stations.
  • Information Boards: Discontinue the use of physical posting of brackets, rules, etc. and instead post online.

Sports Organization Provided Supplies

  • Hand Sanitizer: If hand washing stations are not readily available at the facility, sports organizations should provide hand sanitizer (60% alcohol) and should schedule mandatory use at breaks.
  • Food: If food is offered, provide in pre-packaged boxes or bags for each player or staff member and don’t share utensils.

Personal Discipline

  • Hygiene/Hand Washing/Touching Face/Laundering: Players and staff should practice proper hygiene, wash hands frequently with soap and water for at least 20 seconds, use alcohol-based hand sanitizer (with at least 60% alcohol), abstain from touching their face (mouth, eyes, or nose), refrain from spitting, and cover their cough or sneeze with a tissue and throw tissue in the trash.  Carry small bottles of alcohol-based disinfectant when hand washing facilities are not available. Clothes should be laundered after all workouts.
  • Healthy Practices: All players and staff should practice healthy habits including adequate hydration to keep mucous membranes moist, consume a varied, vitamin-rich diet with sufficient vegetables and fruits, and get adequate sleep.

When Someone Gets COVID-19 Or Has Close Contact

  • Educate: Make sure that staff and family members understand that any sick person should not attend any activities and that they should notify the COVID coordinator if they or any other staff member or player becomes sick with COVID-19 symptoms, tests positive, or has had close contact with someone who has COVID-19 symptoms or has tested positive.
  • If COVID Symptoms Exhibited During Event: If a player or staff member exhibits symptoms during an event, they should immediately be separated and sent home or to a health care facility depending on the severity of the symptoms. They should not be allowed to return to activity until they have met the CDC criteria to discontinue home isolation.
  • Player Or Staff Member Return To Sports Activity: See CDC guidelines on When You Can Be Around Others After You Had Or Likely Had COVID-19. Here is a summary:
    • They think or know they had COVID-19, and had symptoms: Players and staff can be with others after: 3 days with no fever, and symptoms improved, and 10 days since symptoms first appeared. Depending on healthcare provider’s advice and availability of testing, player or staff member might get tested to see if they still have COVID-19. If they are be tested, they can be around others when they have no fever, symptoms have improved, and they receive two negative test results in a row, at least 24 hours apart.
    • They tested positive for COVID-19 but had no symptoms: Players and staff can be with others if they continue to have no symptoms after 10 days have passed since test. Depending on healthcare provider’s advice and availability of testing, they may get tested to see if they still have COVID-19. If they have been tested, they can be around others after they receive two negative test results in a row, at least 24 hours apart. If they develop symptoms after testing positive, they must follow guidance above for “They think or know that they had COVID-19, and had symptoms.”
    • They have been around a person with COVID-19: Players and staff who have had close contact with someone with COVID-19 should stay home for 14 days after exposure based on the time it takes to develop illness. It is possible that someone could be able to spread COVID-19 for up to 14 days even if they do not have symptoms. According to CDC, “…factors to consider when defining close contact include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether the individual was wearing a facemask (which can efficiently block respiratory secretions from contaminating others and the environment). Data are insufficient to precisely define the duration of time that constitutes a prolonged exposure. Recommendations vary on the length of time of exposure but 15 min of close exposure can be used as an operational definition. In healthcare settings, it is reasonable to define a prolonged exposure as any exposure greater than a few minutes because the contact is someone who is ill. Brief interactions are less likely to result in transmission; however, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) remain important.”
  • Player Or Staff Has Close Contact: Anyone with close contact with a person exhibiting symptoms should also be separated and sent home and should follow CDC guidelines for self-monitoring and procedures for community related exposures.
  • Cleaning / Disinfecting Surfaces: Any areas, surfaces, or shared objects used by a sick person should be closed off and not used until after cleaning and disinfecting. If possible, it is recommended to wait at least 24 hours before cleaning and disinfecting.
  • Notification: Notify local health officials, staff, and family members immediately of any lab confirmed case of COVID-19 while complying with local state and privacy and confidentiality laws as well as with the Americans With Disabilities Act.
  • Multiple Infections: If 3 or more team members test positive for COVID-19, work with state and local health care officials about continued operation of the sports league. (Source: TX Checklist For Youth Sports Operators.)

Risk Warning And Assumption Of Risk

  • Waiver/Release: Waiver/release agreement forms should be updated to address the risk of communicable diseases such as COVID-19 in addition to injury. See our updated waiver/release agreements for minors and adults. In addition, we have a new, stand alone COVID-19 waiver/release for those sports organizations that already collected their normal waiver/release forms for the season.
  • Coronavirus Warning Signage: Post conspicuous signage at sports facility in highly visible locations (ex: entry, exit, and rest rooms) warning of coronavirus risks and what steps can be taken to reduce such risks. Here is some sample language that should be reviewed by local legal counsel:
    • Coronavirus Risk Warning
      •  It is suggested that seniors or others with compromised immune systems not participate in or attend this event due to risk of infection.
      • Do not enter if you are exhibiting any signs of illness such as sneezing, coughing, sniffles, have fever, or don’t feel well.
      • Do not enter if you have recently tested positive for COVID-19 and have not been cleared or if you have had close contact with someone who has.
      • If you are repeatedly sneezing or coughing, you may be asked to immediately leave the premises.
      • All players, staff, and spectators should practice responsible social distancing by remaining at least 6 ft apart whenever possible.
      • All players, staff, and spectators should wear face coverings whenever applicable.
      • Wash your hands and/or use hand sanitizer upon entrance, during the event, before and after you eat, and as you leave. Hand washing and hand santizer stations are provided.
      • Avoid touching your face including your eyes, nose, and mouth.
      • Small public restrooms should limit occupancy to one person at a time.
For more details on the sample mitigation guidelines above, see CDC Considerations For Youth Sports.

Sadler COVID-19 Risk Management Templates 

Other insurance policies that may apply to coronavirus

Event Cancellation Insurance is a stand-alone policy that pays for certain financial loss if an event is cancelled, postponed, curtailed or relocated beyond the control of the policyholder. Covered perils may include, but are not limited to, hurricanes, earthquakes, severe/adverse weather, outbreak of communicable disease, terrorism, labor strikes, non-appearance of key people, and unavailability of the venue due to fires, floods or power outages

Though outbreaks of communicable disease are commonly covered under Event Cancellation policy forms, the two leading carriers have recently started to exclude (not cover) coronavirus on newly issued policies. One carrier is issuing a specific coronavirus exclusion, whereas the other considers it to be an excluded pre-existing condition. However, Event Cancellation policies issued prior to the addition of the recent coronavirus restrictions may not have a coronavirus exclusion.

Also note that even if a coronavirus exclusion does not exist, a claim would only be covered if it is not possible for the event to move forward due to travel restrictions, state or local ordinance restrictions, or the suspension of facility operations. These factors are beyond the control of the insured. It is not enough that the attendees or event organizers have a fear of traveling or of catching the virus and voluntarily make the decision to cancel or alter the event.

Directors & Officers Liability covers the business entity and its directors and officers against certain lawsuits alleging managerial negligence that results in economic damages or the violation of rights of others under state, federal, or constitutional law. It is possible that a decision involving the failure to anticipate the financial impact of coronavirus and to take appropriate action could result in economic damages to the business and a subsequent lawsuit by shareholders or other stakeholders against the negligent directors and officers. However, D&O carriers may attempt to deny such a claim because of the “bodily injury” exclusion that is found in D&O policies. Many claims adjusters will take the position that economic damages arising out of bodily injury (i.e. coronavirus sickness) are excluded. However, this position is already being challenged in the courts in other contexts and the ultimate results are unclear.

Worker’s Compensation / Employer’s Liability Insurance covers certain on-the-job injuries and occupational diseases to employees and uninsured subcontractors, including medical bills, lost wages, and disability awards. It’s possible that an infected employee could file a Workman’s Compensation claim. However, Worker’s Compensation Commissions in some states may take the position that a covered occupational disease must be one that is specific to employment and not an ordinary disease to which the general public is exposed outside of employment. An exception may be health care workers who are exposed as part of their employment.

Business Interruption.  Sports facility owners and other sports organizations that own buildings or insure contents may carry a Commercial Property policy. Commercial Property policies often include Business Interruption / Extra Expense insurance which provides coverage for loss of business income (lost profit plus continuing operating expenses) while operations are totally or partially shut down as a result of a covered loss to insured property.  Also provided is Extra Expense coverage for the additional and necessary expenses after a loss to the extent that they offset the Business Income loss. In order for Business Income coverage to be triggered, there must be a direct physical loss to the property that is being covered, whether it is building or contents.

Some Property policies may include a coverage called Contingent Business Interruption which can trigger coverage in the event that there is a covered loss to the premises of suppliers, customers, or key partners. This coverage does not require any such loss at the insured’s own premises.

It is doubtful that contamination of building and contents would be considered a direct physical loss that would trigger business interruption coverage. Also, many property policies include a virus or bacteria exclusion which would further restrict coverage.

In addition, the Property policy may include coverage for acts of civil authorities that restrict access to an area. If such coverage exists, this may trigger a covered Business Interruption claim.

Coverage for any of the above-referenced Business Interruption coverages is not certain. Each case will depend on its own unique facts. Furthermore, the outcome will be dependent on the policy form and the existence of certain bacteria or virus exclusions that may apply. However, these claims may at least be worth discussing.

Conclusion

This coronavirus resource page will be updated frequently as new information comes to light. The purpose is to provide a framework to think through the risks to help each sports organization make an informed decision regarding cancellation and/or mitigation of risk. In addition, any potential coronavirus claims should be turned into the insurance carrier so that the claims department can make the coverage determination.

 

DISCLAIMER

THE VIEWS, OPINIONS, AND ANALYSIS EXPRESSED IN THIS BLOG ARE GENERALIZED DISCUSSIONS OF LIABILITY, INSURANCE, AND RISK MANAGEMENT PRINCIPLES BASED ON CURRENT KNOWLEDGE OF THE RAPIDLY CHANGING COVID-19 PANDEMIC AS IT IMPACTS THE SPORTS AND RECREATION INDUSTRIES. AS CONDITIONS CHANGE AND NEW INFORMATION BECOMES AVAILABLE, VIEWS, OPINIONS, AND ANALYSIS MAY CHANGE AND BEST EFFORTS WILL BE MADE TO UPDATE THE CONTENT IN THIS BLOG FOR CLARIFICATION. THE VIEWS, OPINIONS, AND ANALYSIS EXPRESSED MAY BE INCOMPLETE, INACCURATE, AND MAY OMIT CRITICAL INFORMATION. FURTHERMORE, NO SPECIFIC LIABILITY ANALYSIS, INSURANCE COVERAGE, OR RISK MANAGEMENT ADVICE IS PROVIDED FOR ANY PARTICULAR SPORTS ORGANIZATION. SPORTS ORGANIZATIONS SHOULD CONSULT WITH THEIR OWN INSURANCE AGENT FOR GUIDANCE BASED ON THEIR INDIVIDUAL CIRCUMSTANCES AND INSURANCE POLICIES. NO LEGAL ADVICE WHATSOEVER IS PROVIDED AND SPORTS ORGANIZATIONS SHOULD CONSULT WITH LOCAL LEGAL COUNSEL AS REGARDS THEIR POTENTIAL LIABILITIES ARISING FROM OPERATING DURING THE COVID-19 PANDEMIC AND BEST PRACTICES FOR RETURN TO PLAY AND RISK MANAGEMENT MITIGATION STRATEGIES TO REDUCE LEGAL RISK. SADLER & COMPANY, INC. DBA SADLER SPORTS & RECREATION INSURANCE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE DISSEMINATION OF THIS CONTENT.


Coronavirus Resources

CDC Coronavirus Disease Situation Summary

CDC Coronavirus FAQs

CDC Coronavirus Travel Information

CDC Interim Guidance for Businesses and Employers

World Health Organization Coronavirus Disease Outbreak

4 Key Coronavirus Insurance Coverage Battlegrounds

US Olympic Paralympic Coronavirus Information for Team USA Athletes and Staff

Breaking Down Business Interruption: How Insurance Can and Cannot Mitigate Coronavirus Losses

Coronavirus in the Workplace – Compliance Considerations for Employers

Does Business Income Insurance Cover Coronavirus Shutdowns?

P/C Insurers Put a Price Tag on Uncovered Coronavirus Business Interruption Losses

Few COVID-19 Liability Lawsuits Filed So Far

How COVID-19 Court Lockdowns May Reduce Settlement Amounts

Coronavirus and the CGL

Will General Liability Insurance Respond to COVID-19 Claims

Businesses Fear Lawsuits from Sick Employees, Patrons After Reopening

How will youth sports return to play? USOPC offers first glimpse

Return to Play COVID-19 Risk Assessment Tool: From Aspen Institute

AL Gov. Kay Ivey extends public health emergency, issues COVID-19 lawsuit protections

USA Softball Back To The Ballpark Recommendations

CDC Guidance in Parks and Recreation Facilities Including Organized Sports

Open TX Checklist For Youth Sports Operators

NCYS Return To Play Considerations

NFHS Sports Medicine Advisory Committee Recommendations On Opening Up High School Athletics

United States Specialty Sports Association (USSSA) Return To Play Guidelines

Little League Season Resumption Guide

How to Prove Sports Risk Management Training Delivered To Staff 

Innovative ideas for documentation and signatures

By now your sports organization has hopefully adopted a child abuse/molestationconcussion/brain injury, or other general risk management awareness program.  So how do you document delivery of these policies, procedures and training to your staff and their agreement to comply?

Such documentation could be essential in the event of a lawsuit when you must produce the evidence. For negligence-based lawsuits, your organization has a duty of general supervision, which requires the existence and delivery of these risk management programs. In addition, the federal Safe Sport Act requires proof of adoption/implementation of written policies and procedures and staff/minor training on how to prevent and report suspicions of child abuse.

Video Training vs Document Training

Many organizations prefer video training with an accompanying test at the end of the video. The test proves absorption of the material by the staff member.  A printable certificate of completion, which can be kept on file by the sports organization, is also typically included.  However, many sports organizations consider video training to be very slow moving and, in many cases, is no more than a talking head reading a written document. And the technology for the video training or hiring a vendor to deliver it can be quite costly. And if revisions are necessary, the entire video needs to be produced all over again. As a result, many organizations prefer to train by the delivery of a risk management document which is less expensive and provides for greater flexibility.

Electronic Signature as Part of Online Staff Registration

But how do you prove the risk management document was delivered to the staff member and he/she  reviewed it and agreed to comply with its terms? There are many high-tech and low-tech ways to do this. One high-tech way is to have an online registration platform whereby staff can receive links to the training documents and must click on an “I agree” electronic signature that they reviewed the risk management documents and will comply with their terms. In this case, be sure to specifically name the documents. Your webmaster will assist with this set up.

DocuSign and Alternatives

But not all sports organizations have access to an online registration platform of this type. Another alternative would to be use an e signature software such as DocuSign, PandaDocHelloSign, SignNow, etc. These platforms allow your sports organization to deliver these documents and to keep an electronic signature on file. But this can also be cumbersome for sports organizations that are not tech savvy and where staff members are not all using email.

Agreement On Paper Registration Form

If you don’t use electronic registration or an e-signature platform like those listed above, you could add a section to your paper staff registration form entitled Risk Management Compliance. This section should include a statement that reads “By my signature below, I agree that I have reviewed the following risk management documents that were distributed to me via email and/or posted on our website: (Insert names of risk management plans) and I will comply with their terms.”

Old-school Gang Signature Document

Another lower tech way to document training is to simply post the risk management plans on the sports association website and create a gang signature document. At the top is should state that the below signed staff members have reviewed the following risk management plans (insert names of plans) and agree to Cloud Data Storagecomply. The gang signature document is distributed, signed and dated at a meeting where all of the staff members are in attendance.

Document Retention of 16 Years

Regardless of the method of proving delivery of the training and staff member agreement to comply, evidence of such should be kept on file in a cloud-based system for at least 16 years in many cases. This is because in many states a 4-year-old child may wait until age 20 to file a lawsuit, which is a span of 16 years. See our article How to Easily Organize Sports Risk Management Documents in the Cloud.

Conclusion

Please take advantage of our fantastic sports risk management library. It includes important forms, documents, articles, videos, and risk management program templates on how to reduce the risk of injuries as well as your insurance premiums. And remember, the best risk management program is of little value if you can’t document that you delivered it.

John Sadler Featured As Sports Insurance Expert In Rough Notes

 

Sadler & Company, Inc. President, John Sadler was recently featured as a Sports Insurance Expert in Rough Notes magazine, Focus on Sports and Leisure.

“Coupled with the headline-grabbing scandals and the day-to-day exposures, the sport and leisure market could be in for some instability in light of a major event, be it high-profile or not. John M. Sadler, president of Sadler & Company, Inc., a Columbia, South Carolina-based agency, agrees that……” Read More

 

 

Managing Risks to Participants and Spectators at Special Events

Precautions can save lives and lawsuits

Community calendars are full of local organizations sponsoring tournaments, festivals, outdoor fundraisers, races, craft fairs and more. You’ll likely attend at least one yourself in any given season.

Those putting on such events are responsible for the safety and security of attendees, participants and vendors. That even includes, in some cases, their property. Weather is one risk that can’t be controlled, but Special event risk managementother potential risks can be mitigated.

Event organizers need to develop a risk management plan long before the event takes place. First-time planners should realize this is as important as planning the venue, advertising, catering, entertainment and other aspects of an event. There are everyday incident types that can occur, like a collapsed tent or injured runner. But terrorist attacks and active shooters at public venues in recent years drastically changed security protocols for public events.

A lot can go wrong

Every event requires preparation, of course. And each step offers opportunities to consider what could go wrong and how to prevent it. Below are some general steps that can be taken to lower the risk of injuries.

  • Law Enforcement and Fire Department: Police presence at the event, in parking lots and directing traffic improves security drastically. Consider requesting bomb-sniffing K-9 units. Notify the fire department well in advance of the event.
  • Registrant/Vendor Check-in: Require participants to provide a photo I.D. at registration to receive their packets/T-shirts/bibs. Vendors should also provide proof they are contracted to be at the event.
  • Baggage Check: Consider making a policy that guests can only bring in clear plastic bags. Otherwise, set a limit on the size and number of bags, totes, or backpacks attendees may carry in.
  • First Aid and Safety Station: Post clearly visible signs designating the location of the first-aid and customer relations stations. Arrange for an ambulance and EMTs to be present for the duration of the event. We recommend that a physician, athletic trainer and/or registered nurse be in attendance at any sporting event.
  • Volunteer Staff: Station your volunteers (wearing event T-shirts, hats or armbands) throughout the venue. This includes parking areas, to monitor the crowds, assist attendees, answer questions, and direct the flow of automobile and pedestrian traffic

Special Events Game Changers

We all know about game changers. Sometimes it’s a certain player, a momentum swing, the venue or fans. Other times it’s an event that makes us stop and rethink our views on one particular topic or another. The bombings at 2013 Boston Marathon qualify as a game changer.

It’s often a catastrophe that makes us re-evaluate our priorities. The Boston Bombings forced us to address our personal safety and the safety of participants at sporting events.

Increasing event security

In attempts to strengthen event security at its football games, the NFL banned spectators from bringing in purses, coolers, backpacks and other miscellany. Some view this as overkill. Others view it as the natural evolution in the continual ramp up of security measures in a volatile setting.

The tech revolution

The technology boom is also helping to strengthen event security. While closed-circuit television is still the Event securityindustry’s main method, the use of cellphones proves the most beneficial in enforcing safety regulations at sporting events. And not just among event staff. Many venues advertise a number for spectators to text or call if other patrons become unruly or are acting suspiciously.

And did you know there are apps available for reporting security issues? Fans may now anonymously submit complaints/observations using ISS 24/7 (or other) software. Game changer!

In addition to security hotlines, social media helps monitor patrons at sporting events. People love Facebook, Twitter and Instagram. Many sports teams and event management companies use these tools to their advantage. They post on their accounts to spread the word of inclement weather, evacuation notices and other pertinent information.

Smartphones are good for more than just checking your Twitter feed. They are also important in documenting fan behavior at games, both good and bad.  In a world where anyone can be famous on the Internet, staying on your best behavior can mean the difference between YouTube fame and infamy.

Special Events May Require Special Coverage

Every event is different, and safety should be priority No. 1. The security measure you put in place depends on its size, venue, attendance and other factors. And while some will stretch your budget, you’re not saving anything by taking unnecessary risks.

There is one element of the planning stage that should never be overlooked. Determining whether your insurance program includes the coverage needed for a safe event for everyone involved. That includes the hosts, participants, volunteers, vendors and guests.

There are risks involved in hosting and managing special events that may require either added short-term or annual coverage. Check with your agent about the following areas that require particular attention as you plan your event.

Vendors

Vendors can include caterers, tent and equipment rentals, concessions, security, and parking attendants. Sports risk managmentResearch your vendors thoroughly because poor service or a mishap on their part can spoil an entire event. Think of the potential consequences of a collapsed tent or food poisoning. It’s critical that each of your vendors provide you with a valid certificate of insurance evidencing General Liability with a limit of at least $1 million each occurrence. Require that they can add your organization as an additional insured on their policy.

Venues

It’s not unheard of for the actual venue of an event to be a factor that causes an accident or injury claim. Stages collapse, fire exits get blocked, and severe weather sometimes triggers the need for fast evacuations. The more knowledge you have about the number of people attending the event, the electrical equipment needed, and potential for severe weather, the better prepared you will be. For indoor events, make sure you know the emergency protocols of the building. This includes knowing where all the fire extinguishers, exits and stairwells are located. For outdoor events, be sure the terrain and any light/sound rigging are properly installed. Monitor the weather in the days leading up to the event as well as during the event – storms can pop up unexpectedly with disastrous results. Weather apps for smartphones alert you to severe weather watches and warnings.

Emergency Planning

Every event should have a unique emergency plan that all staff and volunteers receive and sign confirming they have read it. The emergency plan should include who has the authority to shut the event down or ask a vendor to vacate. Sudden storms, a shooter in the area, or a vendor with a lapsed permit are only a few examples of when someone may need to make an on-the-spot decision.  The emergency plan should also include a protocol for announcing a closing or changes in the event programming. It goes without saying that all event staff and volunteers should be familiar with the event emergency plan, to include medical Security at special eventsemergencies, lost children, crime and severe weather.

Security

Security often tends to get overlooked because it doesn’t generate income. But consider security an investment that reduces your risk of liability, which is just as good or even better than income. These security tips help make for a much safer event for everyone involved.

  • Volunteers are a great resource. But don’t use them for security enforcement purposes, such as dealing with unruly people, enforcing parking or alcohol regulations, or providing first aid. It’s best to have trained medical and law enforcement professionals handling these duties.
  • Using teachers, senior/varsity athletes and other community leaders is also not a good idea when it comes to maintaining order in the crowd. These temporary-authority figures aren’t always respected by others when they’re out of their element.
  • If you pay for professional security, don’t scrimp. Going with the cheapest security service may not be your wisest decision. Are their employees simply hired staff or trained personnel? Ask what types of sports events and what size crowds they can handle. Ask for examples of situations they managed to control and get references.

Sadler offers Special Event insurance and one of our insurance experts would be happy to help you determine what coverage your event needs.

And further information we have several articles related to reducing the risk of liability and injuries at special events. We can also provide a quick quote for tournament insurance and non-sporting events or you can contact us or call at (800) 622-7370.


Sources:
  • William Dyson. “Safe and Secure: How to Protect Your Event, Your Athletes and Your Spectators.” sportsdestination.com 07 Sept., 2018.
  • Kelly Martin,  “Safety and Security: Changing your game for the better,” Sports Destination Management. Sept./Oct. 2013.

Managing Charter Bus Risk for Sports Organizations

Including 5 tips to help reduce liability

One of our youth sports clients was recently involved in a serious charter bus crash. One child was tragically killed and some 45 others were hospitalized. This unfortunate incident resulted in extensive national media coverage. Worse was the pain and suffering of the sports organization, families, and community.

The use of charter buses is a relatively safe mode of transportation for sports organizations compared to other options. However, catastrophic crashes do occur and can result in serious passenger injuries and/or fatalities. In most cases, the charter bus company carries sufficient auto liability limits to cover the damages. But that is not always the case, and the sports organization can find itself in serious legal jeopardy.

Sports organizations can manage this risk by adopting the simple risk management precautions discussed here.

Safety of charter buses

National statistics indicate that traveling in a charter bus is safer than other common forms of travel. A charter bus is 50 times safer than a car, and twice as safe as air travel. However, serious charter bus accidents always capture intense media exposure, which may inflate the risks in the minds of the public.

ESPN’s “Outside the Lines” study for the period 2007-2008 found that almost one-third of NCAA Division I schools used charter bus services that had one or more deficiencies in federal safety scores. Of these 85 schools, approximately 35 used companies with an overall safety rating of “conditional.” This is one step under “satisfactory.” The U.S. DOT ratings range from “satisfactory” to “conditional” to “unsatisfactory.” These ratings are issued based on drug testing, record keeping, bus maintenance, and driver qualifications. It is recommended that a charter bus service should not be hired unless it has a rating of “satisfactory.”

Most athletic department administrators hire charter buses on the basis of price and availability, rarely paying attention to safety records. However, experts recommend giving safety records top priority, as will be explained later in this article.

Examples of common safety violations that raise red flags include reports of crashes, driver violations, Charter bus risk managementworn tires, unqualified drivers, failure to record entries in logbooks, driving without adequate rest, allowing drivers to operate before passing drug tests, and inoperable emergency exits.

Charter bus companies bear the brunt of the legal risk

The owner and the driver of the charter bus bear most of the legal brunt if something goes wrong. But the sports organization still owes a legal duty of due diligence in managing the hiring of the company and the supervision of passengers. Charter bus accidents often result in serious injuries or fatalities to multiple passengers. This means it’s possible for the auto liability limits of the charter bus company to be exhausted.

Sports organizations and their insurance policies may also be a deep-pocket target of plaintiffs’ attorneys

What if the charter bus company allows its auto liability coverage to lapse or the limits of the policy are breached?  Creative plaintiffs’ attorneys will find a way to identify other deep pockets – such as the sports organization. The sports organization may carry the following insurance policies, which could potentially be tapped:

  • Accident Insurance: Participant Accident Policies often provide coverage for not only practice and games, but also group transportation to and from practices and games. Accident policies include medical limits that commonly range from $25,000 to $250,000. However, medical coverage is usually excess to other collectible insurance, such as family health insurance. Accident policies also may include an accidental death & dismemberment benefit which commonly ranges from $5,000 to $20,000.
  • Non-owned and Hired Auto Liability (NOHA): A NOHA policy may be a stand-alone policy or may be endorsed onto a General Liability policy. NOHA liability provides coverage to the sports organization for its vicarious liability arising out of the use of a hired auto, such as a charter bus. Accident victims often allege that the sports organization was negligent in the hiring of a charter bus company with an inadequate safety record, with no insurance, or that they did not adequately supervise the wearing of safety belts by the minor passengers.

5 tips on how to manage the charter bus risk to reduce liability

  1. Select a charter bus company with a satisfactory safety record.  Before signing the contract of hire for the charter bus, request the DOT number. Then perform a Safety and Fitness Electronic Records (SAFER) Systems search to determine the carrier’s safety rating (satisfactory, conditional, or unsatisfactory). This link will also verify the carrier is authorized to transport passengers for hire; if the permissible territory of operation is interstate or intrastate; inspection records of vehicles, drivers, and HAZMAT; the crash record, and the date of the last compliance review. Only carriers with a satisfactory safety rating should be hired.
  2. Verify adequate insurance.  Use the carrier’s DOT number to perform a Licensing and Insurance Search. Verify the required limit of liability insurance and if the carrier currently carries a limit high enough to meet that  requirement. A $5,000,000 limit is required by federal law for charter buses that cross state lines and carry 16 or more passengers. The report will provide a list of policies in force from present to past including effective date, cancellation date, insurance carrier name, policy number, and limit of coverage.
  3. Verify a 24-hour emergency dispatch system. The charter bus company should have a 24-hour emergency dispatch system with live representatives on duty to respond to last minute changes, emergencies, and other unexpected problems that may arise.
  4. Wearing of seat belts.  Sports organizations traveling with youth participants should always provide adequate supervision to avoid lawsuits for negligent supervision. If the bus has seat belts, staff should make sure that all minor passengers are wearing their seat belts. Since November 2016, all newly-manufactured buses are required to be equipped with lap and shoulder belts for each Risk management and charter busesdriver and passenger seat.  The sports organization should make its best efforts to select a charter but with seat belts.
  5. Verify driver qualifications. Check that the charter bus company requires drivers to meet these qualifications:
  • Possess a commercial drivers license (CDL)
  • Pass a qualifying physical exam within the past two years
  • Undergo drug and alcohol testing
  • Adhere to DOT out-of-service regulations as follows: drives a maximum of 10 hours after being off duty for eight consecutive hours and does not drive more than 70 hours in an eight-day time period.

Source: Chad Cushman. “Charter Bus Safety: 5 Things You Must Know.” Indian Trails Blog. 29 Mar 2014.

Commotio Cordis in Sports and New NOCSAE Standard on Chest Protectors

Looking to provide athletes the best heart protection possible

Commotio cordis is a sudden cardiac arrhythmia caused by a direct blow to the chest. It typically results from a low-velocity impact to the chest from a thrown or batted ball, puck or other object typically traveling between 20 and 50 mph. The risk increases the closer the impact is to the center of the heart.Death results when an abnormal rhythm, ventricular fibrillation, develops. However, blood circulation to the heart may also be affected.

For commotio cordis to occur, the impact has to be precisely timed to strike the heart during a 15 to 30-millisecond phase of the electrical cycle. It can cause sudden death in young baseball, softball and hockey players, as well as other athletes.

Commotio Cordis by the Numbers

  • The sport with the highest incidence of commotio cordis is baseball, followed by softball, hockey, football, soccer and lacrosse.
  • An overwhelming 95 percent of cases affect males.
  • The most frequently affected age group is 10 to 18 years.
  • Since 1995, the U.S. Commotio Cordis Registry received reports of over 225 cases. Many more unreported cases are suspected of having occurred.
  • The Registry reports a survival rate of 24 percent.

Survival Outcome

While instances of commotio cordis are rare, sadly, the death rate is 90 percent. Unfortunately, the lack of response to CPR efforts by healthy young athletes is unexplained.

History shows that responding with CPR efforts within three to five minutes is critical. Studies indicate AEDs and Risk Managementthat the chances of surviving an incident of commotio cordis are enhanced if a shock from an automated external defibrillator (AED) can be delivered promptly. Most ballparks don’t have AEDs, and those that do must have well-practiced procedures in place for the rapid use of the device. Otherwise, all is for naught.

Also, the high-profile lawsuit in New Jersey of a pitcher being struck by a batted ball that came off of an alleged “hot bat” involved commotio cordis resulting in a permanent disability to the pitcher. The metal bat manufacturer and others were sued. What is interesting to note is that commotio cordis usually occurs only when a projectile travels at a relatively slow speed, usually between 20 and 50 mph. In this case, the basis for the lawsuit was that the ball speed was too fast as a result of the alleged “hot bat.”

Protecting Against Commotio Cordis

Researchers have been looking for solutions, typically in the form of chest protectors. But statistics show that somewhere between 20 and 30 percent of commotio cordis victims collapsed while wearing chest protection of some sort. Obviously, this means that the protection athletes were given wasn’t good enough.

Educating coaches, players and parents about the importance of preventing precordial blows is critical. For example, baseball and softball players should be taught to step aside or to turn and deflect balls using the shoulder, not the chest wall.

Commotio cordis is not related to an underlying heart condition. Therefore, susceptibility cannot be predetermined by a medical screening.

Spectators, players, and staff need to be able to recognize the signs of commotio cordis and take immediate action if a player is struck in the chest and collapses.

New NOCSAE Standards in Protection

In July 2018, the National Operating Committee on Standards for Athletic Equipment (NOCSAE) set the world’s first performance standard for chest protection from commotio cordis. NOCSAE developed separate versions for baseball and lacrosse. Governing bodies of the various sports will decide whether or not they include compliance with these NOCSAE standards in their rules of play and when that goes into effect.

The Science Behind the New Standards

Together with the Louis J. Acompora Memorial Foundation, NOCSAE funded more than $1.1 million in Commotio cordis standards for chest protectorsresearch that pinpointed the cause of commotio cordis, including the critical moment of occurrence. To test impacts to the chest and heart, research engineers then developed a mechanical chest that mimics the human response of the human. All this led to NOCSAE creating the first commotio cordis-specific chest protection standard. NOCSAE looks to reduce the risk of death significantly from commotio cordis for athletes using equipment certified to this new standard.

Chest Protector Certifications By SEI

The Safety Equipment Institute (SEI) issued the first certifications for chest protectors that meet NOCSAE’s new standard. The NOCSAE criteria support a test method that produces reliable measurements to evaluate various types of chest protectors.

Chest protector manufacturers participating in SEI’s certification program must also have their facility and operations audited for quality assurance.  Additionally, all products labeled SEI and NOCSAE-certified must be recertified annually. Yes, all products have to be retested, and the manufacturing facility successfully meets all SEI quality-assurance requirements each year.  SEI serves as the world’s premier certification organization for safety and protective products.

High School Rule Change in Baseball For Catchers

The standard update for chest protectors resulted in a rule change by the Baseball Rules Committee of the National Federation of State High School Associations (NFHS). Rule 1-5-3, effective January 1, 2020, requires catchers wear chest protectors that meet the NOCSAE standard as the time of manufacture. Knowing that catchers are wearing equipment certified by the latest safety standards provides players, coaches, parents and school administrators assurance that athletes have the best heart protection possible, said Elliot Hopkins, NFHS director of sports and student services. Other youth baseball organizations will need to address whether or not they will follow the lead of NFHS.

No Guarantees of Protection and Opponents of New Standard

It’s important to note that neither NOCSAE nor SEI offer any guarantees of protection from the certified chest protectors. They clearly state that no thoracic or chest protector can prevent all cardiac injuries, and that catastrophic injury and death may occur to a wearer of a NOCSAE and SEI-certified protector.

Opponents of the new standard point out that neither NOCSAE, SEI, nor any manufacturer can say affirmatively that their product does prevent commotio cordis. Also, many question if the additional expense of compliance is worth protecting the very low number of athletes impacted by this rare condition, especially since there are no guarantees. Others wonder if the new chest protectors may cause unintended consequences such as adding an additional heat layer that may contribute to heat illness.

If you found this blog on commotio cordis to be beneficial, please check out our other sports risk management content, and other risk management blog posts.

Commotio cordis

High School Coach and Wife Suffer Fatal Electrical Injury

Danger where and when you least expect it.

We read about a lot of tragedies occurring in our schools these days. Terrorism, gun violence, gang activity and more leave students, parents, faculty and staff bewildered and grieving.

Unfortunately, it was an act of kindness that led to two tragic deaths and left a community in grief.

Liberty County High School’s baseball coach and his wife were electrocuted as they attempted to install a new scoreboard.  Worse, their 14-year-old-son was also injured in the mishap. They were replacing the original baseball field scoreboard, which had been destroyed by Hurricane Michael in October, 2018.

The coach was lifting the equipment off a trailer using a boom lift, according to the Liberty County Sheriff’s Department. The boom made contact with overhead power lines, causing the coach to be electrocuted. His wife and son both attempted to assist him, which resulted in her death. The son is expected to recover from his injuries.

This tragic accident reinforces the extreme caution that is required while working close to overhead power lines. Contact with the power line is not necessary as electricity can arch through the air up to 10 feet to ladders or tools under some circumstances.

Improper Sports Injury Care is a Leading Cause of Sports Lawsuits

Risk management and education are key to lowering the risk of sports injuries

If there’s one sure thing you can count on in sports, it’s that athletes get injured. Athletes of all ages and sizes participating in any sport from archery to wrestling risk being injured. Injuries can occur during warm-up, practice, and play. They even occur on the sidelines, in locker rooms and on the bus heading to a tournament.

However, many potential injuries can be prevented through best risk management practices. And when injuries do occur, it’s important that the proper steps are immediately taken.  Too many injury-related insurance claims and lawsuits arise out of improper attention to injuries. Sports administrators, coaches and trainers who implement the following guidelines greatly reduced their risk of liability.

Pre-injury planning

Maintain and post an emergency phone list that includes:

  • EMS, Police and Fire: 911
  • Water EmergencyEmergency contact form
  • Gas Emergency
  • Electricity Emergency
  • Site Map: include a detailed map of all fields, parking areas, buildings, and streets. Include symbols for emergency access points for EMS, first aid stations, AED’s, fire extinguishers, and utility disconnect or shut off points. List the exact name and address of the facility and the names of the closest roads and intersections. Keep this list with the first aid kits.

First Aid Kit:  Keep a first aid kit available at all practice and game locations.  Each coach should always keep a fully-stocked first aid kit in his or her vehicle.  Ensure access to ice or cold packs at all practice and game locations.

First Aid and CPR Training: Each coach and manager should provide documentation of their successful completion of a Red Cross-certified first aid and CPR training course within the past three years. (Note: First aid training and CPR may be a standard according to some authorities. However,  there is not widespread compliance within most non-scholastic, volunteer-run youth sports programs. Do not list this provision unless the organization is in full compliance.)

Emergency Information and Medical Consent Forms:  Keep either a hard copy or electronic copy available at all times in the event emergency treatment is required.

Pre-participation Screening

Some sports governing and sanctioning bodies require submission of an approved pre participation medical clearance form. Others may require an actual sports physical. The difference is that a medical clearance form can be signed by a healthcare professional based on a recent physical whereas a sports physical requires a new evaluation. There are various legal definitions of “approved healthcare professional” among the 50 states,  but generally this term includes a medical doctor (MD), osteopathic doctor (DO), physician’s assistant (PA), nurse practitioner (NP) or athletic trainer (AT). Non-contact sports generally don’t require preseason physicals and medical clearance forms. Note that it is not the standard in all sports to require either a pre participation medical clearance or a pre season physical.

Flexibility Conditioning, and Strength

Warming up raises the body temperature, which prepares muscles for exercise. Participants also need to stretch after the warm up.  Coaches and trainers should require engagement in standard flexibility and stretching exercises by all participants prior to practices and games.

Conditioning exercises increase physical fitness and athletic skill. Sport-specific strength training programs are fundamental to an athlete’s development and success. Instruction on and implementing reasonable and age-appropriate conditioning and strength training programs are key to injury prevention. However, strength training with weights is normally not encouraged for athletes aged 12 and younger.

Emergency Weather Plan

In the event of lightning, follow the 30/30 lighting rule. Suspend all outdoor play with appropriate Lightning 30-30 ruleevacuation whenever the time between lightning strike-to-thunder clap is under 30 seconds. Do not resume play until thunder ceases for 30 consecutive minutes. If no fully-enclosed buildings are on-site, evacuate players to vehicles.  Please see our “Lightning Safety” article for more detailed information on this subject.

Tornado warnings require immediate suspension of all outdoor play with appropriate evacuation to appropriate shelter. Underground shelters such as storm cellars and basements offer the best protection from a tornado. However, other shelter options to consider are:

  • A small interior room or hallway on the lowest floor possible of a sturdy building. Baseball dugouts, tents, and sheds are not appropriate shelters.
  • Rooms constructed with reinforced concrete, brick or block with no windows and a heavy concrete floor or roof system overhead.
  • Avoid auditoriums, cafeterias and gymnasiums, which have flat, wide-span roofs that can be ripped off in high winds.

Avoiding Heat Illness:

Educate all staff and players on pre-activity hydration and the prevention of heat illness. We encourage use of our article “Heat Illness: Avoidance and Prevention” to satisfy this requirement.

Be prepared to postpone or reschedule practices or games to avoid peak temperatures. Ensure that water and/or sports drinks are readily available. Schedule mandatory fluid breaks during practice and games. Modify the duration, intensity, and equipment usage during practices as necessary. Likewise, modify the game rules to allow unlimited substitutions.

Make use of the Wet Bulb Globe Temperature (WBGT), which is the new standard for decision making. Keep a WGBT meter on site or use the Weather FX app, available on iTunes and Google Play.

Create and always follow an emergency action plan for participants who do become ill from heat. Include plans for EMS access to the venue. When a player presents symptoms of heat stroke, call immediately EMS and start cold water immersion while waiting for their arrival. A cold water immersion tub should be available on location. It does not need to be expensive as a Rubbermaid container or plastic kiddie pool will work.

Concussions/Brain Injury

We highly recommend the sports organization adopt and implement our Concussion Awareness Risk Management Program as part it overall risk management program.

Post Injury Treatment

  • First Aid: No staff member administering first-aid should exceed the scope of his or her training. Stabilizing and preventing the injury from worsening is the purpose of first aid. After achieving stabilization, allow medical professionals provide all further treatment. Provide EMS with participant’s Emergency Information and Medical Consent Form.
  • Medical Emergency: Call 911 if immediate attention is necessary. Refer to the site map when speaking to EMS to provide clear instructions about the location of the facility.
  • Parent Notification: Notify parents/guardians immediately when a treatable injury occurs.
  • Notification of Risk Management Officer: Notify your RMO who initiates documentation of the injury.
  • Return to Play: Require players treated by a medical professional to provide a written return-to-play clearance form from one of the medical professionals listed in the Pre-participation Screening paragraph above. However, note that some states and governing bodies will only allow MDs and DOs to sign such a form after a concussion. Do not put pressure on players to return too early. Honor the instructions of healthcare professional. 
  • Concussions: Follow the removal, treatment, and return-to-play protocols that can be found in our Concussion Awareness Risk Management Program.

How to Easily Organize Sports Risk Management Documents in the Cloud

Be Prepared to Produce Critical Documents for Litigation

Risk management requirements of federal, state, case law, governing bodies, and insurance carriers

Amateur sports organizations face ever-increasing legal risks arising out of injury to participants, spectators, and other third parties. Federal law, state law, case law, governing bodies, and insurance carriers require that amateur sports organizations adopt and implement a variety of risk management forms and programs to protect participants and spectators against injury risk and sports organizations against legal risk.

Organizing and managing these documents may seem overwhelming for a sports organization, but we provide helpful tips on how to simplify this process.

Critical forms that must be retained for retrieval

Sports organization must be able to document implementation, execution of agreements, delivery of training, etc.

Having these risk management programs in place is just the start. Sports organizations must also be able to prove their programs were adopted by formal board action, implemented as official policy on an annual basis, and that many of these documents were acknowledged with a signature. Otherwise, critical documents may not be available to enter into evidence in the event of a lawsuit or governmental administrative action.

Paper or electronic storage? Your cloud system or a vendors cloud system?

This documentation can be retained in paper and/or digital format. Sometimes these are individual documents. But sometimes documents are collected online through automated registration software used by the sports organization or vendors providing services to sports organizations. In the latter case, the only evidence is often a registry page or dashboard that shows a list of persons who clicked on “I agree” or completed training. Sports organizations can’t rely on these automation vendors to store critical information over the long term. This is because they are frequently start-up companies with high failure rates.

Sports organizations must retain documents for at least 16 years in many cases

For legal purposes, retention of these documents by sports organization should be at least 16 years, in most cases. The reason is that a 4-year-old child can wait until the age of majority plus an additional two years for the statute of limitations to run out. The age of majority is typically 18, and the statute of limitations may be up to 2 years. As a result, the child may have a span of 16 years in which to file a lawsuit for past injuries.

This 16-year time span presents a problem due to the frequent turnover of volunteers in local organizations. Who wants to store paper records for 16 years? A better solution is cloud-based storage where the login information is passed on with each new turnover in staff.

Staff acknowledgment of training and compliance

Critical risk management documents, such as those related to abuse, brain injury/concussion, and general risk management awareness training, require acknowledgment of receipt, review, and compliance with either a wet or electronic signature.

Below is a sample staff acknowledgment that can be built into your online registration:

As part of your registration as a staff member, you are required to receive, review, and agree to follow a number of risk management programs. Below you can find links to our policies and educational awareness training on Child Abuse Risk Management, Brain Injury Risk Management, and General Risk Management Awareness Training. Please download and save these programs, familiarize yourself with the information, and adopt the policies outlined in the documents. In addition to these links, you can find all of these resources (and more) on our website under the risk management tab.

  • Child Abuse: Click here (embed link) to access our Child Abuse Risk Management Plan, which includes our policies and educational training:  I will download, carefully review, and agree to follow the policies contained in this document:  I agree ______
  • Concussion/Brain Injury: Click here (embed link) to access our Brain Injury / Concussion Risk Management Plan, which includes our policies and educational training.  I will download, carefully review, and agree to follow the policies contained in this document:  I agree ______
  • General Risk Management Awareness Training: Click here (embed link) to access our General Risk Management Awareness Training Plan, which includes our policies and educational training.  I will download, carefully review, and agree to follow the policies contained in this document:  I agree ______

Below is a sample acknowledgment that can be inserted at the bottom of a document for collection of a wet signature and returned to the sports organization:

I agree that I have carefully reviewed this document and will comply with these guidelines.

Print Name:

Signature:

Date:

Cloud storage solutions for document retention

Problems with relying on website and online registration vendor storage systems

Vendors that provide websites and online registration services often offer document storage solutions for the various forms being collected. But what would happen to your forms if the vendor were to be purchased by a competitor or went out of business?  What if you decide to switch to a new website vendor? Storing files in the cloudDo you have a contractual guarantee that allows you to  download your stored forms and move them to a new platform? What file management capabilities does their software offer in terms of setting up folders and sub-folders, methods of uploading documents, and optical character recognition (OCR) search capability? Can their storage limits be easily exceeded?

When storing critical documents with a third-party vendor, we recommend that you take screenshots of dashboards for storage in your own systems. For example, take a screenshot of a dashboard of parents who clicked on “I agree” to the waiver/release agreement.

Off-the-shelf cloud storage and document management: Evernote and OneNote

Applications such as Evernote and OneNote are powerful and offer the following advantages:

  • They are not as likely to go out of business. In the event of a purchase by a competitor or going out of business, the files can be easily downloaded to another program.
  • Both free and low-cost paid versions available.
  • Account login information transferable from one league administrator to the next as they turn over.
  • Accessible on a desktop PC, smartphone or tablet.
  • The ability to set up by sports registration season with a folder and sub-folder structure for the intelligent organization of documents.
  • Easy filing into the appropriate folder/sub-folder via scan, web clipping, or forwarded via email.
  • Simple search and retrieval of documents with OCR.
  • Documents can be forwarded to another party via email.
  • Automatically generated backups.

Below is a sample folder/sub-folder structure for use in Evernote or OneNote:

Fall 2019 Baseball Season

Waiver/Release (individual forms or printed out of dashboard from online registration vendor.)

 Emergency Information / Consent (but HIPAA compliance problem)

 Image Release

 Field/Facility License/Permit Agreement

 Certificates of Insurance – Vendors

 Certificates of Insurance – Visiting Teams

 Sanctioning Agreement

 Criminal Background Check Info (Privacy concerns)

Child Abuse Training acknowledgment

Concussion Training acknowledgment

Risk Management Awareness Training acknowledgment

Preseason Meeting Training Content and Attendance List

Certificate of CDC Concussion Training

NAYS Certificate for Coach Training (individual forms or print out of dashboard from online vendor.

Screenshots of third-party vendor dashboards containing critical information

Accident Insurance Claims

General Liability Claims

Participant Injury Documentation

 

One potential problem with Evernote and OneNote is that they are not HIPAA compliant. That means that you can’t store certain documents covered by HIPAA, such as emergency information / medical consent forms. Evernote does not have a solution for this at this time, but OneNote does, if you jump through a few hoops and are willing to pay a little. But if you prefer Evernote, you can find an alternate solution for the HIPAA documents.

And because of the sensitive nature of some documents and the ease of access over multiple platforms with Evernote and OneNote, it is imperative that access is limited to those within the sports on a need-to-know basis. It is possible within Evernote and OneNote to restrict access on some folders to certain administrative staff and allow access on other folders to a larger group of administrators. Creating sufficiently secure passwords is also paramount.

Time to get started with cloud-based document retention

We hope this information is useful and helps you visualize how you can store your critical risk management documents in the cloud. You never know when an unfortunate incident may require a legal defense for your organization, administrators, and staff. Please visit our risk management resources page for our best-in-industry risk management forms, articles, and ready-to-implement risk management programs.