With the UK Government’s relaxation of the lockdown restriction in England, one of the key headlines was the announcement of “unlimited outdoor exercise” in England, albeit with strict social distancing measures still applying.
The emphasis on ‘outdoor’ exercise, as oppose to ‘indoor’ exercise is a less risky option given the risk of transmitting Covid-19 outdoors is considerably lower. Although this means that the reopening of indoor leisure facilities is likely to be postponed until a later date, it does mean that individuals can still enjoy a fair amount of outdoor exercise with sports such as golf, fishing, horse riding, tennis and some water sports now being allowed, subject to social distancing measures and adhering to the government’s advice of exercising alone or with only 1 other person from a different household.
What does this mean for professional sports and, in particular, team sports?
Notably, sports such as football, cricket and rugby have all expressed desires to restart their professional seasons, however there has been a distinct lack of consistency, even within the same sport – take for example, the restart of the German Bundesliga compared to the lack of restart (as yet) in the UK. The main problem facing team sports is the inevitability of physical contact and the potential transmission of the virus from one player to another or through a piece of equipment, such as a ball.
Several governing bodies have stated that sports equipment can be shared, however this is on the proviso that strict hygiene measures are enforced, i.e players and staff must wash their hands thoroughly before and after using such equipment. Of course, each sport is different and those governing bodies must develop their own guidelines which comply with the government guidelines. Risk assessments must be undertaken if team sports are to continue during the pandemic.
Who is legally responsible if things go wrong?
If team sports are allowed to go ahead and a sportsperson contracts the virus, who is legally responsible? Firstly, there is a clear onus on governing bodies to ensure the safety of sports participants, including players and staff. If a particular sport is to go ahead, the governing body of that sport must have undertaken a risk assessment and must have in place all reasonable measures to protect against the virus. Any failure to address this has the potential to be considered negligent.
On the same hand, professional clubs are employers and therefore could also be held liable if one of its employees contracts the virus as a result of the club’s failure to sterilize equipment or ensure that the pitch, court or otherwise has been deep cleaned. There is also a responsibility for clubs to adhere to the Health and Safety at Work Act 1974 with regards to protecting their employees and workers from risks to their health and safety.
Will volenti non fit injuria come into play?
At law, the concept of ‘voluntary assumption of risk’ can act as a complete defence where an injured party was fully aware of the risks involved in the activity before engaging in it. Whether this concept can apply to sports people who may contract the virus whilst engaging in team sports during the pandemic is yet to be seen. However, there may be good argument in the fact that the individual would have been aware of the risks of contracting the virus before competing and, in some circumstances, may have ‘waived’ their legal rights in relation to the virus.