By Aron Solomon
Before 1972 we lived in a collective Olympic bliss, being able, for the most part, to divorce ourselves from the geopolitical stresses of the world and enjoy the fellowship of sport. Then came the horrors of Munich, which forever changed not only the Olympics, but the legal issues surrounding this long-standing international competition.
Given the past 15 months battling a global pandemic that has taken 3.5 million lives, there is grave concern being expressed around whether it is even possible for this summer’s Tokyo Olympics to be safe. In May, International Olympic Committee President Thomas Bach addressed this issue, claiming that the Games would be “safe and secure.”
In the modern Olympic era, only Montreal (1976) has had to deal with such an emergent situation. While Montreal had the omnipresent specter of being the Games that followed Munich, Tokyo is dealing with the international ramifications of COVID-19 and a massive international city dealing with yet another lockdown.
To make both practical and legal issues infinitely more complex, on May 24, the U.S. government essentially issued an advisory order that Americans should not travel to Japan. This puts a serious cloud over the Games, thereby darkening the looming clouds of potential cancellation with the opening ceremonies less than two months away.
While the practical impact of this announcement is that people may be less willing to attend the Olympics in Tokyo if they move forward, it could have legal implications as well. There is a line that gets drawn in the sand for certain events, and when you cross that line, you are legally seen to be assuming a far greater degree of risk. It’s like deciding to climb a challenging but scalable mountain in normal conditions, versus the risk involved in doing so with a clearly-stated avalanche warning.
Bill Goodrich, a partner at the Pittsburgh law firm Goodrich & Geist, P.C., clarifies the legal issues around the Tokyo Games:
“It’s clear the liability for injury will differ whether it is an Olympic athlete, a ticket-holder, or a bystander who is injured during any Olympic Games. What determines liability is local and national laws, as well as any existing contractual relationships, such as those entered into between the host of each Olympic Games and people who purchase tickets to attend the events.”
Goodrich also cautions that it’s important to “factor in any waivers of the participants — this is not uncommon and should be expected in any event such as this set in unusual circumstances.”
As to the athletes themselves, liability issues begin when they leave their home countries and head to Japan. Every Olympic Games has agreements that include a waiver that releases Olympic organizers from liability should an athlete be injured or killed while involved in the competition. But the specifics of each of the waivers will vary by Olympics and take into account specific circumstances and exceptional risks. Athletes are always assuming primary risk by choosing to compete in their given sport because they understand that, for example, throwing a javelin comes with certain inherent risks. But the fundamental liability question surrounding athletes and Tokyo is a simple one: Are the correct steps being taken to keep them safe?
As of this writing in late May, from the perspective of the athletes, the answer is a fairly resounding no. Citing failure of the IOC to protect athletes, the World Players Association is redoubling their efforts to have their safety concerns addressed:
“At a minimum this requires the IOC to review and upgrade ventilation systems, reduce crowding of venues and accommodation facilities, implement much more rigorous and effective testing, supply masks to athletes, and revoke the demand that athletes sign waivers as a condition of their involvement at the Games.”
There are lessons for the Tokyo organizers in the 2010 death of Olympic athlete Nodar Kumaritashvili, a Georgian luger killed in a practice run just before the opening of the 2010 Winter Olympic Games in Vancouver. Venezuelan luger Werner Hoeger had warned Olympic officials months before the crash about track safety hazards after he was injured in a crash at the Whistler Sliding Center facility, in the mountains outside Vancouver. This is the same track where Kumaritashvili was killed.
Waivers do not completely get Olympic organizers off the hook and that could be a critical lesson for Tokyo. While the family considered a lawsuit, they accepted an insurance payment instead, small consolation for an event that forever changed the lives of the family of this national hero. But the legal reality that an inherently unsafe condition can’t necessarily be waived is a legal concept that may soon be relevant. Just the fact that Japan is now considering an Olympics with no in-person spectators serves to memorialize how serious these and other risks are viewed at this time.
That in itself could potentially be a legally significant factor for those purchasing tickets now as well as those athletes who are being assured that the conditions in Tokyo and at the Games themselves are safe. Whether this U.S. government advisory opinion will be seen as drawing that final line in the sand remains to be seen, but it’s definitely not good news for the Games or those people who will still choose to attend them.
This article originally appeared in SportsBusinessJournal.com.