• Lauren Di Lella

COVID-19 Vaccine Mandates in the Context of Professional Sports


[1]


Following the release of the COVID-19 vaccines, businesses and schools across the country mandated vaccinations in an effort to stop the spread of coronavirus. More recently, a number of cities, including New York City, San Francisco, and Los Angeles, mandated proof of vaccination for large group activities. [2] Additionally, countries such as Canada and Australia now require proof of COVID-19 vaccination for entry. [3] These city and country-wide vaccine mandates coupled with strict COVID-19 safety protocols have had a rippling effect on the professional sports world and raised an array of legal issues for unvaccinated players and their teams.


Kyrie Irving

Kyrie Irving, a star player for the NBA’s Brooklyn Nets, has refused the COVID-19 vaccine and elected to keep the reasons regarding his decision private. [4] Irving is ineligible to play in home games due to New York City’s (NYC) vaccine mandate, which applies to spectators and individuals who work in a NYC sports arena. [5] Interestingly, visiting players are exempt from NYC’s ordinance law because they are not employees of a company within the city's limits. [6]


Initially, the Nets decided Irving would not practice or play with the team at all. A few months into the season, however,the team changed course and approved him to be a part-time player. This gives Irving the opportunity to play at away games where his unvaccinated status does not conflict with local mandates. [7] Some speculate this decision was made in connection to the Nets’ desire to win an NBA championship. [8] Irving is one of the most talented players of his generation and the Nets likely want him in the lineup because it gives the team the best chance to win.


NBA commentators question the contractual aspect of Irving’s decision not to get vaccinated and the financial implications it has caused him and the team. Under the NBA’s collective bargaining agreement, players are not paid if they miss a game without reasonable cause. [9] The NBA has indicated that a failure to comply with COVID-19 vaccine mandates constitutes an unexcused absence and the unvaccinated player’s salary should be reduced accordingly. [10] Irving’s decision to refuse vaccination is projected to cost him $16 million in salary and $186 million in extension potential. [11] Now that Irving has been approved to play in away games, he will be entitled to compensation for those games only.


Questions remain about the reasonableness of the NYC ordinance since it permits visiting unvaccinated players to participate in games at Barclays Arena. [12] Some believe the ordinance is contradictory, illogical from a public health point of view, and precludes fair play. Others argue that NYC acted in good faith to protect NYC employees. [13] To date, the NYC ordinance remains unchallenged and NYC’s new mayor, Eric Adams, has not taken action to rescind or amend it. [14]


Aaron Rodgers

Another professional athlete under scrutiny for a COVID-19 violation is Aaron Rodgers. In November 2021, Rodgers tested positive for COVID-19 after telling reporters he had been “immunized” when asked about his vaccination status. [15] Rodgers, who remains unvaccinated, gave the impression he had been vaccinated and did not follow NFL protocols for unvaccinated individuals. [16] The NFL fined Rodgers $14,650 for breaking protocol after he attended a large party and fined the Packers $300,000 for not reporting his presence at the party nor disciplining him when he failed to wear his mask during press conferences. [17]


Rodgers’ deception also led to other consequences. Prevea Health, a Wisconsin-based healthcare organization, ended its nine-year endorsement deal with him. [18] Taking a different stance, State Farm indicated that while it disagreed with his decision not to get vaccinated, it respects his right to his own opinion and would stand by him as a sponsor. [19] It will be interesting to see if other sponsorship deals are impacted for Rodgers going forward; according to sports advertising experts, companies try to avoid sponsoring controversial individuals. [20]


Novak Djokovic

Finally, Novak Djokovic has been at the center of controversy surrounding vaccine mandates abroad. Djokovic flew to Melbourne, Australia in the hopes of defending his Australian Open Title but was detained after his visa was canceled by the Australian Border Force due to concerns about his medical exemption from vaccine requirements. [21] Australia currently requires all citizens and tourists to present proof of vaccination to enter the country with limited exceptions. [22] Despite Tennis Australia accepting Djokovic’s recent COVID-19 infection as a basis for a medical exemption, the Australian government ultimately had the final say as to whether he could remain in the country. [23] Djokovic’s lawyers appealed his visa cancellation and a Federal Circuit Court judge reinstated it shortly after. [24]


Many Australians were enraged by this decision. Locals who endured months of lockdown to suppress the spread of the Omicron variant suspected Djokovic received special treatment because of his fame and ability to pay for a high-power legal team. [25] Djokovic added to the controversy by admitting that he attended an event after receiving a positive PCR test in December and that one of the travel documents he used to enter Australia contained an error. [26] In response to public outrage, Australia’s Immigration Minister canceled Djokovic’s visa a second time. [27] Djokovic was deported shortly following the cancellation of his visa, and under current law, he may be banned from returning to Australia for at least three years. [28]


The controversy surrounding Kyrie Irving, Aaron Rodgers, and Novak Djokovic, and their decisions to reject the COVID-19 vaccine have important implications on the professional sports world and beyond. On one hand, these athletes are standing up for their beliefs and freedom to make decisions about their health. On the other hand, professional athletes who are part of teams have contractual commitments to those teams, which include playing and fulfilling the duties of their job to the best of their ability, and they have a social contract with their fans who pay for personal seat licenses and game tickets. They are also role models with wide social influence during a public health crisis which is testing corporate values within professional leagues, teams, and sponsors, most of whom have fiduciary obligations to their shareholders.


There is no end in sight to the pandemic, so the professional sports world will need to determine how best to navigate through COVID-vaccine mandates while considering legal and contractual issues, and questions of corporate and individual integrity, social responsibility, fair play in sports, and profitability.




References:


[1] Amir Vera, Pro Athletes and Leagues are Sometimes at Odds with Vaccines, Much like the Rest of America, CNN (27 June 2021). https://www.cnn.com/2021/06/27/us/vaccine-hesitancy-pro-athletes-spt-trnd/index.html


[2] National Basketball Association, FAQ: How NBA Teams are Impacted by City-Imposed COVID-19 Vaccine Mandates, NBA (7 Oct. 2021).https://ca.nba.com/news/faq-how-nba-teams-are-impacted-by-city-imposed-covid-19-vaccine-mandates/qzzx843c5ncs1jqdv718s2zi8


[3] Stephen Collinson, How a Tennis Legend, the US Supreme Court, and the Winter Olympics are Reshaping Pandemic Politics, CNN Politics (11 Jan. 2022). https://www.cnn.com/2022/01/11/politics/novak-djokovic-covid-politics/index.html; Kelly Anne Smith, Can I Travel to Canada from the U.S.?, Forbes (3 Jan. 2022). https://www.forbes.com/advisor/travel-insurance/travel-to-canada-from-the-us/


[4] Matt Sullivan, The NBA’s Anti-Vaxxers Are Trying to Push Around the League—And it’s Working, Rolling Stone (25 Sept. 2021). https://www.rollingstone.com/culture/culture-features/nba-anti-vaxxers-covid-1231988/

[5] Mike D. Sykes II, Barclay Center’s Vaccine Mandate for Employees and Guests is Just a Glimpse of What’s to Come for the NBA and WNBA, USA Today (14 Aug. 2021). https://ftw.usatoday.com/2021/08/barclays-centers-vaccine-mandate-for-employees-and-guests-is-just-a-glimpse-of-whats-to-come-for-the-nba-and-wnba


[6] NBA, supra.


[7] Brandon Marcus, Why is Kyrie Irving a Part-Time Player?, The Cold Wire (20 Dec. 2021), https://www.thecoldwire.com/why-is-kyrie-irving-a-part-time-player/


[8] Id.


[9] Brett Knight, Kyrie Irving’s Vaccination Status Drops him from the Ranks of the Highest-Paid NBA Players, Forbes (15 Oct. 2021), https://www.forbes.com/sites/brettknight/2021/10/15/kyrie-irvings-vaccination-status-drops-him-from-the-ranks-of-the-highest-paid-nba-players/?sh=2978292f701f

[10] Id.


[11] Alexis Keenan, NBA Star Kyrie Irving Could Have Little Legal Recourse to Play While Unvaccinated, Experts Say, Yahoo News (14 Oct. 2021), https://news.yahoo.com/nba-star-kyrie-irving-could-have-little-legal-recourse-to-play-while-unvaccinated-experts-say-215339626.html


[12] Stefan Bondy, If Nets and the NBA Really Want to, They Can Let Unvaccinated Kyrie Irving Play in Brooklyn—for a Small Fine, Daily News (12 Jan. 2022), https://www.nydailynews.com/sports/basketball/nets/ny-nets-kyrie-vaccine-20220112-vhw3aptgzffwphs6jvqzjtbuce-story.html


[13] Ricky Clemons, NYC’s Vaccine Requirements Keep Kyrie Off the Court, but let Unvaxxed Visiting Team Play, Amsterdam News (13 Jan. 2022), https://amsterdamnews.com/news/2022/01/13/nycs-vaccine-requirements-keep-kyrie-off-the-court-but-let-unvaxxed-visiting-team-play/


[14] Michael McCann, NYC Vax Law Hamstrings Irving, Nets in NBA Title Push, Yahoo Sports (14 Jan. 2022), https://sports.yahoo.com/nyc-vax-law-hamstrings-irving-184835679.html?fr=sycsrp_catchall


[15] Rick Scuteri, NFL Fines Green Bay Packers, Aaron Rodgers for Violating COVID Protocols, NPR (10 Nov. 2021), https://www.npr.org/sections/coronavirus-live-updates/2021/11/10/1054161988/nfl-fines-green-bay-packers-aaron-rodgers-for-violating-covid-protocols


[16] Id.


[17] Grant Gordon, Packers Fined $300k, Aaron Rodgers, Allen Lazard, Fined $14k for Violation of COVID Protocols, NFL (9 Nov. 2021), https://www.nfl.com/news/packers-fined-300k-aaron-rodgers-allen-lazard-fined-14k-for-violation-of-covid-p#:~:text=The%20NFL%20has%20concluded%20its,Mike%20Garafolo%20reported%20Tuesday%20night


[18] Scuteri, supra.


[19] Id.


[20] Amy Tennery, Sponsors Split on Rodgers’ Anti-COVID-19 Vaccine Stance, Reuters (8 Nov. 2021), https://www.reuters.com/lifestyle/sports/sponsors-split-rodgerss-anti-covid-19-vaccine-stance-2021-11-08/


[21] Royce Kurmelovs, Novak Djokovic Visa Cancelled: Why is the Tennis Star Being Kicked out of Australia?, The Guardian (6 Jan. 2022), https://www.theguardian.com/sport/2022/jan/06/novak-djokovic-visa-cancelled-why-is-the-tennis-star-being-kicked-out-of-australia


[22] Collinson, supra.


[23] Kurmelovs, supra.


[24] Rod McGuirk, Judge Says Djokovic Can Stay in Australia but Saga Not Over, AP News (10 Jan. 2022), https://apnews.com/article/coronavirus-pandemic-novak-djokovic-sports-health-australia-3e4fd65e0ac87c85e6fcc6b968a62869


[25] Collinson, supra.


[26] Rhiannon Hoyle, Novak Djokovic’s Australian Visa Challenge Failed Due to Antivaccine Stance, The Wall Street Journal (20 Jan. 2022), https://www.wsj.com/articles/novak-djokovics-australian-visa-challenge-failed-due-to-antivaccine-stance-11642663221


[27] Id.


[28] Id.