What is going on?
First, the simple, courteous act of wearing a protective mask in public managed to polarize the country.
Now it appears “vaccine passports”—basically an app to show you have received your COVID-19 vaccine—may be headed for the same fate. (Though apparently we should drop “passport” and call them vaccine “verification” papers per multiple surveys such as this one.)
A simple, secure and free method to quickly assure venues, theaters, restaurants, etc. that we’ve greatly reduced our COVID-19 risk, and that those sitting around us have as well, is…a political issue?
Unfortunately, just as many elected Conservatives and libertarians resisted mask mandates, now we’re seeing the same response to vaccine passports. Last Friday, Fla.’s Gov. Ron DeSantis signed an executive order barring businesses from requiring patrons or customers to show vaccine documentation, under penalty of losing state contracts. Since then, Miss. Gov. Tate Reeves and Texas Gov. Greg Abbott have joined in.
Truthfully, the World Health Organization (WHO) has an excellent point per WHO spokesperson Dr Margaret Harris, “At this stage, we would not like to see vaccination passports as a requirement for entry or exit because we are not sure at this stage that the vaccine prevents transmissions.”
But Lawrence Gostin, a Georgetown University professor of global health law, coauthored a paper in the Journal of the American Medical Association about ethical issues, said vaccine passports would contain very little information. “In many ways vaccine passports protect your privacy. They don’t require you to disclose any information, other than if you got a vaccine or not.”
Then take for example, in DeSantis’ own state, all children in kindergarten through 12th grade must show proof of vaccination against six diseases to attend public school.
Nationally, those looking to immigrate to the U.S. must provide a vaccine record for 14 diseases in all—including two types of influenza, two types of hepatitis, chickenpox and polio. Records are kept in a paper booklet issued by the WHO. Or take the U.S. Armed Forces, which typically requires up to a dozen vaccinations depending on where a person is deployed.
And now the Equal Employment Opportunity Commission has told employers that they can mandate coronavirus vaccination because public health comes first.
What does this mean for sports venues?
“Generally, sports venues provide a license for a spectator to enter–it is permission and it is revocable,” explains Carla Varriale-Barker, an adjunct professor of Columbia University’s Sports Management program and a shareholder at Segal McCambridge Singer & Mahoney, where she chairs the law firm’s Sports, Recreation & Entertainment Practice Group.
Basically, this is the same concept as “No Shirt, No Shoes, No Service” or refusing entry to (or removing) someone who is visibly intoxicated.
As a kind of compromise, starting last week, the Miami Heat began setting aside two sections for vaccinated fans with less social-distancing requirements.
That begs the question—is the solution to split-up venues into the “Have Shots” and “Have Nots” (including the “Will Not Provide Documentations”)?
“When we were kids, we all remember being asked ‘Would you like Smoking or Non-Smoking Section’ when we went out,” offers Dr. Tiffany Richardson, a sports business professor at Seattle University. “Are we headed down the road to all needing to be asked if we prefer ‘Vaccinated or Non-Vaccinated’?”
Will we see more of that in sports with entry points, seating sections, concessions lines and bathroom queues divided like the old smoking/non-smoking sections?
“Quite possibly—like an elite tier of seating that already exists, but for a health reason versus a price point reason,” says Varriale-Barker. “I think this is more of a public relations concern right now than a legal concern. But I can see a claim being brought to challenge this sort of ‘have/have not’ seating. Lawyers, like nature, abhor a vacuum.”
Is there an extra level of complexity for venues owned by government entities or stadia on public university campuses?
“These venues have ‘state action’ concerns and concerns about intrusion on constitutional rights that a private venue may not have,” explains Varriale-Barker. “Will there be religious liberty concerns, for example, if a venue mandates vaccinations for spectators? The law is just catching up to some of the concerns about ‘vaccine requirements’ for sports venues now that spectators are returning. I feel as though we just addressed COVID and assumption of the risk and waivers of liability and now we are jumping to this issue! Of course, there are also labor and employment law concerns for the people who work in the venues and event staff to consider.”
To all of that, I wonder, ‘Do we want sports back with packed stadiums or not?’
With more than 66 million Americans fully vaccinated (20 percent of population), another 46 million with one of two shots taken (14 percent) and pacing at more than 3 million new shots per day, the light at the end of the tunnel is actually glowing closer.
“People have suffered for over a year, and they want their lives back,” Gostin told BuzzFeed News. “They want to go to restaurants, see movies, travel to see their loved ones, and return to the workplace. Vaccine passports offer a pathway to a more rapid and safer return to normal life.”
“Vaccine passports offer a pathway to a more rapid and safer return to normal life.” – Lawrence Gostin
Yesterday, Clear and the NBA, announced a partnership to make Clear’s “Health Pass” technology available to all NBA teams and their arenas for COVID-19 health screenings that presents a tech-driven, common-sense solution to ramping up capacities.
At least 10 NBA teams, including the Heat, as well as the Bulls, Hawks, Knicks, Magic, Spurs, Thunder and Warriors have already implemented Clear’s technology for staff, player and/or fan verification.
Health Pass “is a free, mobile experience…that securely connects a user’s verified identity to multiple layers of COVID-19-related health information – like test results – to help reduce public health risk and aid in the safe return of fans to NBA venues…Clear’s Health Pass allows fans to securely access and verify their health information prior to entering an arena. Additionally, as COVID-19 vaccines continue to be administered across the country, Clear’s Health Pass will soon offer the ability to link an individual’s vaccination records to their Health Pass account.”
You may recall that the NHL partnered with Clear for their restart “bubbles” in Toronto and Edmonton. NHL personnel downloaded Health Pass, uploaded a photo and a form of personal ID to verify their identity through Clear’s facial recognition. Then, each day before leaving their hotel room, they answer COVID-related questions. A quick scan at a Clear kiosk, which includes a temperature check, and that’s it.
Other pro sports users of just Clear for biometrics include MLB’s Athletics, Braves, Giants, Mariners, Marlins, Mets, Orioles, Rangers, Rockies, Tigers and Yankees; MLS teams include the Earthquakes, LAFC, NYCFC and Sounders; in addition to their NHL league deal, hockey’s Rangers utilize Clear; NFL users include the Seahawks.
When TMR spoke this week with Ken Lisaius, Clear’s VP, Public Affairs & Communications, he broke it down perfectly, “Clear was not born of the pandemic, but this presents a great opportunity for us to help people get back to what they know and love.”
As Varriale-Barker, the expert in sports business and sports law doesn’t suggest getting all litigious. Rather for teams and venues moving forward she recommends, “Just as we saw with other aspects of COVID, tread carefully and with sensitivity.”
That, combined with some transparency including an explanation of how the technology is being used, can go a long way.
As Shaun Moore, CEO of facial-recognition supplier Trueface told the Wall Street Journal about where consumer hesitation comes from, “It’s the same old story, it’s Big Brother. But if you sit and tell them, and they understand [how it works], that takes a lot of the mystery away.”
The return of sports, as it was following 9/11, could be the great unifier. Let’s not turn a common-sense solution into more division.
You can bet your app I back vaccine passports as the best way to speed the return of sports fans for capacity crowds.
Header photo courtesy Lukas (@lukassfr) via Unsplash