GYMDEMIC: Mom & Pop Gym Sues New Jersey Governor After COVID-19 Pandemic Shutdown

Small business Atilis Gym Bellmawr, LLC in New Jersey just filed a Federal lawsuit in the United States District Court For The District Of New Jersey against Governor Murphy, Attorney General S. Grewal, New Jersey State Police Superintendent Patrick J. Callahan and New Jersey Department of Health Commissioner Judith M. Persichilli.

The gym re-opened its doors two weeks ago in violation of Governor Murphy's Executive Order which shut down "Non-Essential" businesses on March 21, 2020 in response to the COVID-19 pandemic. Despite being issued several summonses the gym owners and their attorneys stood by their gym and members and refused to shut their doors again. Atilis Gym members were fined and received citations. One member was arrested after allegedly taunting police officers and refusing to provide his name.

The gym owners justified their decision to reopen early citing financial hardship and discontent that big stores and liquor were able to remain open as essential businesses during the pandemic while small businesses continued to suffer. The gym owners explained to various media outlets that they reorganized the gym equipment to maintain social distancing, required a thermal body temperature before entering, required masks and gloves for all employees and members, and limited the number of members working out in the gym at the same time.

It is not clear whether Atilis Gym qualified for or applied for a small business loan under The CARES Act. 

Last Friday, Superior Court Judge Robert Lougy granted a request from the New Jersey Department of Health to place temporary restraints on Atilis, directing the gym to remain closed to the public until the state allows businesses designated as non-essential to reopen. Meaning, the DOH shut them down and put padlocks on the doors.  

The order issued by the DOH states “Atilis Gym has continued to operate in non-compliance with Executive Order No. 107, thus posing a threat to the public health by failing to adhere to the measures taken to mitigate the spread of COVID-19.”

While violating an executive order is not per se breaking the law, the actions by Atilis Gym are considered violations of the public health law.

New Jersey is the second hardest hit state from COVID-19 deaths behind New York.

The Lawsuit

I was able to take a look at the Complaint. Jurisdiction in Federal Court appears appropriate as the gym owners  and their attorneys allege in their Complaint violations of their Constitutional rights to due process and equal protection rights under the Fifth and Fourteenth Amendments.

The gym alleges that their business was declared "Non-Essential" without any sort of process. The gym argues that the Orders issues by Governor Murphy and state officials deprives the gym its rights and liberties in lawfully operating its business by ordering the closure of "Non-Essential" businesses. The gym further argues that they were not afforded with a constitutionally adequate hearing to present its case for its business to not be shut down. 

The gym further claims that its health protocols are sufficiently similar to those businesses that were allowed to remain open. The gym claims that its business is absolutely essential to the health and well being of its members and to the financial viability and health of its owners and employees. 

What The Gym Wants By Bringing This Lawsuit

The gym owners want permanent injunctive relief invalidating and restraining the enforcement of the Orders which shut them down. The want the lockdown order lifted. They are also seeking compensatory damages of an unknown amount and attorneys fees for having to bring this lawsuit. 

What Will Happen Now

Honestly, by the time the lawsuit is hashed out New Jersey will likely have opened up "Non-Essential" businesses including fitness facilities. Until then, the Court scheduled a hearing for June 8, 2020. 

Will The Gym Win

It is unlikely that the gym will win this one. While they make some great arguments challenging the constitutionality of the lockdown/shutdown orders and the criteria used to define "Essential" versus "Non-Essential" businesses, ALL recreational and entertainment businesses were closed for the general wellbeing of the public to slow the spread of COVID-19 during this worldwide Pandemic. 

But wait a minute. Look at Michigan barber Karl Manke, the 77-year-old  barber who stood up against Michigan’s Governor Whitmer. A judge ruled last week that the health department failed to show that Manke's business cutting hair was a specific threat to public health.

Manke's attorney pressed the government to prove that the barbershop was contributing to the spread of coronavirus, as the burden of proof rests with the state to show evidence of the public health threat. The state failed to meet their burden. 

Another factor in favor of Manke was that the sheriff decided not to arrest him therefore implying that the barber was not a threat to public health. 

On May 27, 2020 the death toll from COVID-19 related deaths surpassed 100,000 in the United States. Businesses have closed for good. Families have lost their homes. People have lost their jobs and livelihood. People have lost friends and loved ones. 

In the end no one wins.

THE COST OF THE COVID CRISIS ON THE NCAA AND CONTACT SPORTS WITHOUT CONTACT

The NCAA already lost millions with March Madness cancelled. Now colleges have to consider the cost of safely re-opening their athletic facilities and housing accommodations amid the COVID crisis. This will come at a hefty price tag. 

On May 22, 2020 the NCAA announced the voluntarily return of activities in all sports beginning on June 1, 2020. However, each school will need to work with their respective state and school officials to determine when the best time is for coaches, athletes and administrators to physically return to campus. New York for example has been hardest hit by the coronavirus so the timeframe for athletes to return to campuses in New York will most certainty lag behind other states. 

Colleges cannot host football camps and clinics during the summer of 2020 and coaches are prohibited from working at football camps and clinics held at other four-year NCAA schools. This coincides with the recruiting dead period in place through June 30, 2020 which prohibits football camps and clinics. If the recruiting dead period is extended past June 30, camps and clinics will continue to be prohibited.

Contact sports without contact? This will be the new norm when athletes return to campus to train. Chatter among NCAA football powerhouses include safety measures with coaches, athletes and staff in masks and gloves. Temperature tests at the front door. Hand sanitizing stations. Small group training. Social distancing weight room squat racks 20 apart. Moving weight training outside. No access to locker room showers. No passing a football back and forth. No sharing towels or water bottles. No shared water fountains or hydration stations. No hugging, no high-fiving and no weight-training exercises that require assistance from a spotter. 

“It will be the new norm," says Tory Lindley, president of the National Athletic Trainers' Association and an associate athletic director at Northwestern University.  

Keep in mind a typical NCAA Division 1 school has over 100 active players on their football roster. Coaches, trainers and staff will have the additional responsibility of ensuring social distancing and safety measures are followed. Athletes will have to train themselves for this new norm as well. 

Welcome to the world as we now know it. 

How Social Media Has Allowed Athletes To Tell Their Own Story In Their Own Words

Social media has allowed athletes an avenue to speak directly to their fans and audience without the media muddling their story. Social media has made it more difficult for traditional media outlets to be the first to share breaking news about athletes. 

Remember tuning into SportsCenter for breaking news and highlights? Now social media forums such as Twitter and Instagram allow an athlete to share his or her story first by tweeting or “graming” thereby bypassing the traditional route of news sharing. This is sometimes to the chagrin of a team or athlete’s public relations representative who may have to perform some damage control.  

While balancing the right of freedom of speech under the First Amendment, some athletes have to be careful with the content they post. For example, take Ray Rice. The former running back for the Ravens once tweeted “Just got pulled over for my tints Smh but gave the officer a autograph for his son and he let me go.” While his actions were not against the law per se, he publicly admitted to having essentially bribed a police officer. As a result the police officer likely received some repercussions or a nice scolding from his superiors. Some of the  public was also disgusted over an athlete feeling entitled and using his stardom to get out of a ticket. Another example, Davone Bess, former NFL player, once posted a photo on Twitter of marijuana in his house. Poor judgment for sure. As an aside, under the new NFL CBA which took effect in January 2020, players will no longer be suspended if they fail a drug test for smoking marijuana. But this is  not exactly a green light to flaunt it all. 

More in line with what is going on currently in the world, NFL Bronco players Davontae Harris and Shelby  Harris engaged in a little Twitter snafu recently about differing opinions on mask requirements amid the coronavirus. D. Harris twittered, 

“If I see another parent walking around with a mask on and their toddler doesn’t I’m slapping them”

In response S. Harris twittered, 

“Strong statement from someone who doesn’t have kids” and the back and forth continued. While entertaining for fans, athletes might tick off their organization, coaches and agents and also alienate some fans for posting their political and social views. 

The traditional route for news sharing usually involved a sports organization sharing selective news about a particular athlete or event with a specific news outlet such as ESPN. The sports organization could select what pieces of information to share and  what information to withhold. The news outlet in turn would craft and tailor the story to present it to their own fan base and audience. 

Now news outlets such as ESPN, Bleacher Report, Fox Sports and SI rely heavily on athletes’ trending tweets. A good example is when an athlete announces their retirement on Twitter.  Athletes can also send very strong messages on Twitter and some get disciplined for same. LeBron James sent out a strong message the time he unfollowed his own team the Cavs on Twitter and Instagram leaving fans and media outlets alike up in arms. 

Hearing news first from the athlete himself or herself creates a bond between athlete and fan and allows fans to engage one-on-one directly with the athlete by commenting on a particular post, sharing a particular post and  feeling like part of the athlete’s life. This especially rings true when the athlete engages their fan and audience by responding directly to a fan comment. 

Twitter and other social media forums can serve as an avenue for an athlete to share unfiltered news about their life and humanizes an athlete. Fans may feel they can relate to a particular athlete. This is opposed to the selective style utilized by news outlets that pick and choose which parts of a story to tell and on occasion over-sensationalizing a story and sometime downplaying a story.  

Bottom line is social media has provided athletes a venue to share their story directly to their fans without a middle-man. However First Amendment freedoms must be balanced with the message a particular athlete is trying to send to their fan base. 

The USWNT Got Exactly What They Bargained For.

On May 1, 2020, Federal Judge R.Gary Klausner dismissed portions of the lawsuit commenced by the U.S. Women’s National Soccer Team (USWNT) against the U.S. Soccer Federation. Judge Klausner dismissed claims brought under the Equal Pay Act and rejected the USWNT’s argument that they receive lower pay than the U.S. Men’s National Soccer Team (USMNT).

Under the current women’s team’s Collective Bargaining Agreement (CBA) which went into effect in 2017, the players association opted for more of a fixed income structure with a
guaranteed base annual salary and benefits that the men’s team does not have.
Such benefits include medical and dental insurance, paid child-care assistance,
paid pregnancy and parental leave, severance benefits, salary continuation during
periods of injury, access to a retirement plan, and multiple bonuses. These
bonuses that the women benefit from certainly contain substantial economic
value.

In comparison, the structure of the men’s teams’s CBA provides for a more pay-to-play and incentive-based compensation structure.

U.S. Soccer Federation said in a
statement:

“Women’s national team players are paid differently because they specifically asked for and negotiated a completely different contract than the men’s national team, despite being
offered, and rejecting, a similar pay-to-play agreement during the past negotiations.”

However, the USWNT will still get their day in court on the players’ claims concerning alleged discrimination in air travel, hotel accommodations and medical and training support (“working conditions”).

Trial is tentatively scheduled to start in June 2020. Unfortunately, in light of COVID-19 there may be further court delays. It is entirely possible that the issues raised in the lawsuit
will be resolved outside of court with the players’ association renegotiating
the new CBA which is to take effect in 2021. Having four World Cup wins under
the USWNT’s belt, I am very curious to see the terms of the new CBA.

Bottom line: You get what you
bargained for.