by: Mickey Ingles (previously posted and written for Rappler.com)
Sports bubbles are all the rage now. But before someone puts one up, here are 5 legal considerations to keep an eye on to keep these bubbles (and everyone inside) alive and well.
Complying with government directives
This is a given or should have been a given considering the UST Sorsogon bubble popping.
The Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF) Guidelines are there for a reason.
These carry with it the force of law and must obviously be complied with. If the proposed site of a bubble is under the general community quarantine which prohibits gatherings of more than 5 people, then the bubble is looking at an uphill battle in terms of legality.
It gets even worse if the bubble involves players below 21 years old and officials or coaches above 60, as general IATF guidelines require those below 21 and over 60 to stay home.
Jiving sports bubbles with the latest IATF guidelines will definitely save everyone from embarrassing legal and publicity issues in the future.
Approval of related government agencies
The safest way to start a bubble is to get approval from the relevant government agency, whether it’s the IATF, the Games and Amusements Board (GAB), the Philippine Sports Commission (PSC), or the Commission of Higher Education (CHED).
Professional leagues have to comply with the joint administrative order (JAO) of the GAB, the PSC, and the Department of Health. So far, the PBA, the PFL, and Chooks-to-Go Pilipinas 3×3 have been given the green light to resume varying levels of sports activity after complying with the JAO.
University- and college-based teams must comply with CHED guidelines before resuming sports activity.
After the fallout from the UST Sorsogon bubble, schools must err on the safe side to protect the health of its student-athletes.
Just because students are housed conveniently in a dorm with a practice facility readily available isn’t an excuse to resume training, even if it already looks and feels like a bubble environment. Prior approval is a must.
Duty to anticipate foreseeable dangers
Under tort law, organizers have the legal duty to anticipate and prevent reasonably foreseeable dangers.
With COVID-19 still terrorizing everyone, the further spread of it is a foreseeable danger that must be prevented. Government guidelines will be the minimum benchmark for determining whether an organizer has complied with or breached its legal duty.
While the CHED Guidelines will be the minimum requirement for school training bubbles, schools will do well to exhibit a higher diligence in creating their bubbles – especially if some student-athletes are minors or below 18 years old.
Under Article 218 of the Family Code, schools, its administrators, and teachers have special parental authority and responsibility over minor children under their supervision, instruction, or custody.
This applies to all authorized activities, whether inside or outside the school premises (such as in a nearby province). This special parental authority and responsibility translate to a higher legal duty that schools have to meet for their student-athletes.
Furthermore, the Student-Athlete Protection Act (SAPA) recognizes the state policy to uphold the rights of student-athletes (regardless of age) to hone their athletic skills and abilities without neglecting their education and well-being.
“Well-being” necessarily and obviously includes the health and safety of the student-athletes, which universities and colleges must keep as its highest priority.
Whether it’s a professional sports bubble or a student-athlete bubble, the organizers must ensure easy and regular access to testing, provide masks and shields, implement contact tracing measures, offer 24/7 availability to health care professionals, and employ strict policies that will secure the integrity of the bubble – similar to the limited access to media and the family of the NBA Orlando bubble and harsh repercussions for breaches thereof (hello, Danuel House Jr).
With the academic year up and running, an additional obligation for universities and colleges is ensuring access to online classes. The very definition of a student-athlete and the policy under SAPA recognize that they are students first, athletes second.
Athletic associations, such as the UAAP or the NCAA, must, as early as now, set the rules and guidelines for their member-schools.
A proactive approach will prevent future questions of arbitrariness and “is there a rule violated?”, particularly if a school decides to go the way of the UST bubble-gate and the athletic association metes out a penalty to the erring officials.
Ironing out nitty-gritty details, allowing opt-outs
Professional leagues and schools can also take a page or two out of the NBA bubble playbook and allow stakeholders to opt out for valid reasons. What these valid reasons are will vary and hopefully will be a product of an across-the-board consultations with all the stakeholders.
At a minimum though, players, student-athletes, coaches, and officials should be able to opt out for medical reasons, especially if these make them more susceptible to the effects of COVID-19.
Those who are worried about their family’s health should be allowed to opt out too, similar to Los Angeles Laker Avery Bradley, who had opted out of the NBA bubble because of his son’s history of respiratory illness.
The NFL – which has started its bubble-less season – even allowed players who aren’t at risk of the virus to opt out if they feel uncomfortable.
The legal effects of opting out have to be ironed out in negotiations with the stakeholders.
Will players who opt out because of medical reasons still be entitled to salary, albeit at a decreased rate? Will those who decide to sit out because they simply “feel uncomfortable” get any salary at all? Will teams be allowed to field replacement players for those opt out? What will be the deadline for opting out?
For student-athletes, similar questions must be answered. If they decide to opt out, will this be taken for or against their maximum number of eligible playing years? And how will it affect their scholarships?
A lot of other practical questions must also be asked and answered. For example, what happens if an entire team tests positive? Will their games be forfeited or merely postponed? And God forbid, what if the bubble becomes a COVID-19 cluster, does the season continue? What happens to the lost revenues? Hopefully, these are all answered before the bubble is put up and after consultation with everyone affected.
Disclosure is the best policy
One of the main reasons the NBA bubble is working – and quite frankly has been a resounding success – was the openness of the NBA and the NBPA in their negotiations to resume the season.
More than a month into the bubble, this openness continues today, with the NBA bubble-related policies available online and this sense of open access (which is quite ironic given the closed nature of the bubble) making its way to good and entertaining content for everyone to enjoy (well, maybe too much open access if you’re JR Smith).
It not only gives the bubble a sense of legality and legitimacy, but it also adds to a totally different experience of fan-engagement and brand-building.
This has been a refreshing contrast to what we saw in the UST Sorsogon-bubble, where what had been hidden came into embarrassing and devastating light, coupled with an unprecedented exodus of players.
Justice Brandeis once said that “sunlight is the best disinfectant.” And in these weird uncertain times where we literally gravitate towards disinfectants any chance we get, bubbles must be kept in the light, lest these get popped painfully like pimples.
Mickey Ingles is the editor-in-chief of Batas Sportiva and is wondering if there’ll be bubbles for pick-up soccer games soon… nah, probably not.