OFF-FIELD BALK

 Major League Baseball and all 30 of its teams are suing their insurance providers, citing billions of dollars in losses during the 2020 season played almost entirely without fans due to the coronavirus pandemic. But the vast majority of business cases involving the pandemic (contract clauses, payment issues, insurance claims) have failed to give aggrieved parties any relief.

The suit, filed in October in California Superior Court in Alameda County, was obtained Friday by The Associated Press. It says providers AIG, Factory Mutual and Interstate Fire and Casualty Company have refused to pay claims made by MLB despite the league’s “all-risk” policy purchases.

The league claims to have lost billions of dollars on unsold tickets, hundreds of millions on concessions, tens of millions on parking and millions more on suites and luxury seat licenses, in-park merchandise sales and corporate sponsorships. It also cites over a billion dollars in local and national media losses, plus tens of millions in missed income for MLB Advanced Media. It says all of those losses should be covered by their policies.

Since COVID-19 sparked government-ordered shutdowns in March, judges have dismissed more than four times as many business-interruption lawsuits as they’ve allowed to proceed, according to a preliminary analysis by the University of Pennsylvania Law School.

Industry executives say pandemic-related losses may be their biggest ever, and business-interruption claims will likely be part of that, even though many insurers added virus waivers to policies over the past decade following the SARS outbreak in 2003.

The Insurance Journal reports most of the cases tossed out so far had virus-exclusion clauses. When policies don’t have the exclusion, insurers are arguing COVID-19 can’t cause the physical damage or loss required for a business-interruption payout, like from a tornado or flood. And the industry is winning dismissals with that argument, according to the Insurance Information Institute.

“Business-insurance policies are meant to cover physical things,” said Sean Kevelighan, the chief executive at the institute, which has more than 60 insurance company members. “There’s a ways to go” in the legal battle over coverage, but “the beginning of it is encouraging,” he said.

A September win by Farmers Insurance Exchange in California typifies how some judges interpret “physical loss or damage.” A federal judge concluded a barbershop chain couldn’t show its business suffered a “distinct, demonstrable physical alteration.”

Other businesses have also struck out in trying to persuade judges to allow their claims to go to trial over policies that had virus exclusions. A federal judge in Arizona ruled Nov. 13 the Class AA Chattanooga Lookouts and more than a dozen other teams couldn’t overcome the exclusions.

BEING THE FIRST

Apple's Steve Jobs once said that it is better not to be the first pioneer in a new market. It is better to be an innovative second player. The reason? The pioneer has to go through much trial and error, failures, private and public criticism for a first generation product released with flaws.Jobs was anal-retentive about his products working perfectly right out of the box. You can learn from others' mistakes.

Professional sports leagues are meeting constantly trying to figure out how to salvage part of their pandemic lost seasons. The networks, starved of new content, believe there is a huge pent-up demand from fans for live sports. The owners are gnawing their teeth to get their revenue streams back. The players are not getting paid which puts a financial strain on most of their families.

There are some league commissioners who want to "lead" the world back into the sunlight. Sports give people hope. They want bragging rights that their sport knows what is doing and doing it better.

But this is a tricky matter. Things are outside of EVERYONE's control: government, scientific, and private communities. At least 18 U.S. states have lock down orders in place which restricts any type of public gathering, including sports events. In hard hit states like New York, California and Illinois, 9 of the 30 baseball clubs (30 percent) are banned from playing games.

But baseball owners continue to make proposals to the players union to re-start the season. For two days, the parties have discussed the medical and logistics of re-opening camps and playing of games. Owners believe that they can acquire enough testing materials to have multiple player tests per week. (Critics said that would take away from critical need areas as the coronavirus continues to spread.) The issue about a player, coach, umpire or staff member testing positive is hard to grasp. The CDC states a positive test should quarantine the person for at least 14 days. Anyone with contact with the positive test subject should also be quarantined for two weeks. That means an entire team would be suspended. Some Euro soccer leagues think that they can get around the "contact" person rule by immediately testing everyone and only putting positives into isolation. But even then, it may be too late.

Stanford did a study of 5,200 baseball personnel. It found that 0.7 percent infection rate. However, the reports did not state when the tests were done and what the average was at the time of testing. Massive outbreaks in NYC and Chicago have changed the numbers. U.S. officials have been saying that the nation has not reached "the peak," and that there will be a second wave later in the year.

Several players have been vocal about "risking their lives" to play under such conditions (including a biosphere proposal where the players would be isolated from their families.) Further insult to players, owners want to change the fundamental guaranteed contract structure to a 2020 "revenue sharing" plan. Players are already taking a prorated pay cut. If there is no revenue, the players get half of nothing.

But there will be players who want to play. And there will be players who will refuse to play. If the season opens and a player refuses to report, what would happen? In the past, the player would be suspended without pay. But in this case, would owners try to void the players entire contract (to rid themselves of long term dead money?)

The NBA shut down quickly after one player tested positive. Pro basketball is a contact sport. The court is small. The virus could spread quickly through teams and staff. But the NBA is thinking of ending its season with a large, confined to one location, super-tournament.

An unemployed person who is struggling to make ends meet may wonder why sports leagues are so hell bent on returning to action when the national economy is falling apart. Simple: money. There is no income without games. Some teams, like the Mets, have been for years in a financial mess. There is a possibility that many teams could face bankruptcy.

South Korea had 10 straight days of no new domestic virus cases. It had done so well in early testing, on a massive scale, quarantine outbreaks and voluntary isolation that it has a very low fatality rate. But last weekend, one man went clubbing in Itaewon. He later tested positive. He may have infected 800 or more people. Based on the fatality rate, 20 people could die from this weekend party time. As a result, South Korea has re-closed its bars and restaurants.

What happens if a league rushes to re-open and it is a disaster? Does that turn off casual fans because of perceived reckless behavior? Are owners willing to take a public relations hit? What if re-opening spreads the disease - - - is there a liability risk as well?

That is why leagues need to be super-cautious about re-opening. Yes, the world is getting cabin fever. People need to get back to work in order to get paid. The pandemic may be more panic than scientific fact in some circles, but at this point in time no one knows the nature, extent and aftermath of the virus.