Covid-19 Policies at Sports Venues: The NFL Should Have Required Attendees To Be Vaccinated

Volume 29 Issue 1 Article 1

4-21-2022

Covid-19 Policies at Sports Venues: The NFL Should Have Covid-19 Policies at Sports Venues: The NFL Should Have

Required Attendees To Be Vaccinated Required Attendees To Be Vaccinated

David Caudill

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David Caudill,

Covid-19 Policies at Sports Venues: The NFL Should Have Required Attendees To Be

Vaccinated

, 29 Jeffrey S. Moorad Sports L.J. 1 (2022).

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JEFFREY S. MOORAD

SPORTS LAW JOURNAL

OLUME

XXIX 2022 I

SSUE

Article

COVID-19 POLICIES AT SPORTS VENUES: THE NFL SHOULD

HAVE REQUIRED ATTENDEES TO BE VACCINATED

AVID

S. C

AUDILL

We live in a divided culture, and one aspect of that division is reflected

in the debate over Covid-19 vaccinations—should citizens be free to refuse

vaccinations when (i) consensus science indicates their efficacy in prevention

of Covid infection, and (ii) vaccinations arguably are the keys to ending the

pandemic and to economic recovery? With respect to travel, admission to

large entertainment venues, or, my own focus, attendance at sports events,

the question becomes whether those who voluntarily refuse vaccinations

should be allowed to participate. The purpose of this essay is to argue that

the NFL should have required vaccinations of all attendees of the 2021 sea-

son football games, even if it meant moving games away from those states

that prohibit vaccine mandates (which prohibitions may not, however, sur-

vive legal challenges). To explain the NFL’s reluctance, I locate my argu-

ment in the context of the current cultural divide in the U.S., and especially

the phenomenon of vaccine hesitancy. Faced with these, the NFL chose the

easier route—ignoring the culture wars, persistent vaccine hesitancy, and

public health.

For some, my argument is common-sensical and uncontroversial, while

others see a host of problems if the NFL would have adopted such a policy—

state laws forbidding vaccination mandates, enforcement problems, how to

handle exemptions, expensive protocols and logistics, and angering the fan

base. In the course of this essay, I confront those and other objections, and

defend my argument on the basis of public health concerns. I also highlight

the numerous governmental and private employers, as well as many sports

teams and arenas, that adopted vaccine mandates during the fall football

season, showing that any NFL worries over enforcement and exemptions

* J.D., Ph.D., Professor and Arthur M. Goldberg Family Chair in Law, Villa-

nova University Charles Widger School of Law. The author is grateful for the re-

search assistance of Emily Rollo and Klara D. Bieniasz, both Villanova Law J.D.

candidates in the class of 2023.

(1)

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[Vol. 29: p. 1

would have been shared with others—solutions would have also been

shared. Moreover, any expense that the NFL would have had to bear is not

unlike the numerous losses experienced throughout the pandemic by the ma-

jor professional leagues, college sports, and even the 2021 Olympics

organizers.

I. INTRODUCTION

In the spring of 2021, in the midst of the Covid-19 pandemic,

the NFL seemingly considered requiring fans to have Covid-19 vac-

cinations at football stadiums for the fall 2021 season,

a move that

might have seemed uncontroversial. But that depends on which

world you live in. As we all know, the U.S. population now inhabits

several different realities. We are divided politically

and

divided

with respect to our trust in consensus science, both of which are

reflected in our feelings about Covid precautions at stadium sports

events.

Perhaps facing perceived pressure from vaccine hesitant fans,

and even the vaccinated fans who support the freedom of anyone to

refuse to be vaccinated, the NFL decided that the League would

allow the unvaccinated to attend games—notably, however, the Se-

attle, Las Vegas, New Orleans, and Buffalo teams did end up requir-

ing a Covid-19 vaccination or a negative Covid-19 test to attend a

game.

The NFL announced some guidelines but they are weak

and hard-to-enforce, like the “Fan Health Promise” (those who

1. See Evan MacDonald, Should Vaccinations Be Required For Fans Attending The

NFL Draft Experience At FirstEnergy Stadium?,

LEVELAND

COM

(Mar. 23, 2021),

https://www.msn.com/en-us/sports/nfl/should-vaccinations-be-required -for-fans-

attending-the-nfl-draft-experience-at-firstenergy-stadium/ar-BB1eT85F [https://

perma.cc/9M8V-7RVF] (weighing logistical challenges of vaccinating patrons

against likelihood of a super spreader event if attendees are masked and capacity is

limited). As to the regular NFL season,

Dr. Allen Sills, the NFL’s Chief Medical Officer, said [in April 2021] it’s

“too early” to speculate as to whether the NFL will require fans attending

games to be vaccinated (or show proof of a negative test). The NFL prob-

ably won’t make a decision on this until later this summer.

See Alek Arend, NFL Was Asked If Fans Will Be Required To Be Vaccinated,

PUN

(Apr.

8, 2021), https://www.msn.com/en-us/sports/nfl/nfl-was-asked-if-fans-will-be-re-

quired-to-be-vaccinated/ar-BB1frKgz [https://perma.cc/8J3F-SKC6] (showing un-

certainty regarding vaccine mandate or lack there-of). In mid-May, the “NFL

declined to say whether it would require proof of vaccination for fans to gain entry

into stadiums but admitted it is still developing its stadium protocols.” See Athletic

Staff, NFL to Loosen COVID-19 Restrictions For Fully Vaccinated Fans in 2021 Season,

THLETIC

(May 17, 2021), https://theathletic.com/news/nfl-to-loosen-covid-19-re-

strictions-for-fully-vaccinated-fans-in-2021-season/FoSeAWRXDiZG [https://

perma.cc/KZH3-EPYG] (stating changes in NFL game attendance policy).

2. See Khristopher J. Brooks, These NFL Teams Are Requiring Fans To Get Vacci-

nated Before Entering Their Stadiums,

CBS N

EWS

: M

ONEYWATCH

, (Sept. 16, 2021),

https://www.cbsnews.com/news/nfl-stadiums-vaccine-mandate-fans-bills-seahawks-

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have tested positive, who were exposed to someone who tested posi-

tive, or who have symptoms “promise” to stay away).

Yet by mid-

September, health experts were warning that “football stadiums

could create ripe conditions for COVID-19 to spread among unvac-

cinated fans.”

Major League Baseball teams, on the other hand, were much

more careful in the spring of 2021—for example, the Seattle Marin-

ers were quite strict:

The ballpark is now able to sell more than 26,000 tickets

to fans who are fully vaccinated against coronavirus with

no social distancing or masks in the stands. Other tickets

were sold in socially distanced pods of one to six people.

Those who want to get in without a face covering must

show proof of their vaccinations and get a handstamp

before the security check. People who are unvaccinated

have to wear masks and are required to wear a mask at all

times unless actively eating or drinking.

The Mets had a similar approach,

and while the Giants initially

required fans “to show proof of vaccination or a negative test,” by

September there were no vaccination requirements at Oracle Park.

By contrast, although the NBA did not mandate vaccinations for

fans, by September the Golden State Warriors, Brooklyn Nets and

Toronto Raptors decided to “require vaccinations for fans wanting

to view home games,” and the TD Garden, the home of the Celtics

saints-raiders/ [https://perma.cc/9M4M-4DEN] (highlighting franchises’ varying

vaccination requirements across the NFL).

3. See

NFL S

UPPLEMENTAL AND

LUB

ICKET

ERMS AND

ONDITIONS

, https://

www.nfl.com/legal/clubs-game-ticket-policy [https://perma.cc/QKH9-U7L2]

(outlining how policy requirements rely on the honesty of fans and no require-

ments for testing or vaccination).

4. See “Virus Notebook” Associated Press,

. S

UNDAY

LOBE

(Sept. 12,

2021), at A2 (“At any sort of large event like at a football stadium, without question

there will be many infected people there.”).

5. See Franque Thompson, Seattle Mariners’ New COVID-19 Guidance Allows

Nearly 31,000 Fans Inside T-Mobile Park, Q13 FOX (June 14, 2021), https://

www.q13fox.com/news/seattle-mariners-new-covid-19-guidance-allows-nearly-

31000-fans-inside-t-mobile-park [https://perma.cc/JU5G-MD49] (identifying strict

policies enacted at the beginning of the MLB Season).

6. See “FAQs—Fully Vaccinated Fan Sections,”

ETS

https://

www.mlb.com/mets/tickets/specials/vaccinated-sections/faqs [https://perma.cc/

KC23-2QCX] (detailing Mets’ Covid policies).

7. See Marc Norton, Why No COVID Vaccine Requirements For S.F. Giants Fans?,

EOPLE

’

ORLD

(Sept. 20, 2021), https://www.peoplesworld.org/article/why-no-

covid-vaccine-requirements-for-s-f-giants-fans/ [https://perma.cc/6ELU-DYC3]

(reporting updated policies no longer require vaccination or negative tests).

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and the Bruins, followed suit for that arena’s events, including NBA

and NHL games.

As to the NFL, Erie County (New York) officials, for example,

were initially cautious and decided that only vaccinated fans would

be allowed at Buffalo Bills games; but “the decision didn’t last

long”— within a week it was announced “that the County is ‘re-

scinding the vaccination requirement to attend Bills games and sta-

dium events.’”

While the reversal was explained by the County in

terms of fewer new Covid cases, “low hospitalization, and good vac-

cination rates,” David Hookstead at the

Daily Caller

praised the deci-

sion on other grounds, namely freedom to “live life,” the

practicalities of enforcement, and “common sense”:

This is 100% the correct decision. You simply can’t ban

unvaccinated individuals from living life. It’s not right and

it’s not going to be tolerated. Access to the vaccine is plen-

tiful, [but] we shouldn’t just ban unvaccinated people

from sporting events. How is that even going to be en-

forced? Are people who take tickets going to be required

to check vaccination cards? Yeah, I’m sure that’d go over

really well. Let’s just use some common sense to get

through life. . ..

The problem, of course, is that with respect to Covid-19 vaccina-

tions, there is no “common sense.” The leading sports law

casebook describes sports, somewhat optimistically, as “a unifying

mechanism that provides a sense of community among increasingly

sizeable and diverse constituents.”

Twenty-five years ago, Profes-

sor Rodney Smith agreed:

8. See Michael Silverman, TD Garden To Require COVID-19 Vaccination Or Nega-

tive Test To Attend Bruins and Celtics Games, Concerts,

. G

LOBE

(Sept. 23, 2021),

https://www.msn.com/en-us/news/us/td-garden-to-require-covid-19-vaccination-

or-negative-test-to-attend-bruins-and-celtics-games-concerts/ar-

AAOIsl8?ocid=uxbndlbing [https://perma.cc/PUR9-Y6JD] (noting in order to at-

tend Bruins or Celtics game, concert, or any other event at arena, fans 12 and

older must show proof of vaccination or one of two types of negative COVID-19

test results).

9. David Hookstead, Decision To Allow Only Vaccinated Fans At Buffalo Bills

Games Reversed,

AILY

ALLER

(June 21, 2021), https://dailycaller.com/2021/06/

21/buffalo-bills-unvaccinated-fans-games-attendance [https://perma.cc/HZ67-

9M5M] (quoting Erie County executive Mark Poloncarz).

10. See id. (agreeing with Erie County executive Mark Poloncarz’s tweet even

though Hookstead is himself vaccinated).

11. See Matthew J. Mitten et al.

, S

PORTS

AW AND

EGULATION

: C

ASES

, M

ATERI-

ALS

AND

ROBLEMS

9 (5th ed. 2020) (finding athletic competition to be a unifying

force across socio-economic differences).

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In our diverse culture, characterized by a wide variety of

ethnic, religious, socio-economic and other groups, there

may well be no other force quite like sport, in terms of

bringing people of diverse backgrounds together in pur-

suit of a common purpose. People from all walks of life

are able to sense some unity of purpose as they gather to

participate in or watch competitive athletics. With growing

divisiveness on the basis of ethnic, religious and cultural

differences, the capacity of sport to unify may be of in-

creasing significance. . ..

Even in 2021, with respect to the Covid pandemic, there was opti-

mism about sports as

a vehicle for well-being, tolerance and a means of raising

awareness and lessening the cultural divide. The return of

sports and even the re-opening of sports facilities could

significantly improve the mental health of sports fans and

athletes who find themselves at risk of mental health de-

cline due to isolation.

Sporting events, in this view, “are powerful tools for social integra-

tion and inclusion, whilst having the power to unite people in chal-

lenging times [and] to strengthen social cohesion.”

Finally,

sports journalist Jason Whitlock of Blaze Media also recently ac-

knowledged that “many people have long-recognized the power of

sports to unite otherwise disparate people. . ..”

12. See Rodney K. Smith, When Ignorance Is Not Bliss: In Search of Racial and

Gender Equity in Intercollegiate Athletics, 61

L. R

329, 341 (1996) (highlighting

sports’ importance as one of the last great unifying forces).

13. See Hesham Zafar and Ahmed Medien, How the Power of Sport Can Bring Us

Together and Drive Social Justice,

ORLD

CONOMIC

ORUM

(June 21, 2021), https://

www.weforum.org/agenda/2021/01/uniting-the-world-through-sport-what-can-we-

learn-from-sport-in-enabling-social-cohesion/ [https://perma.cc/JA5S-SUBZ]

(“Liverpool FC’s Mo Saleh . . . has enabled cultural acceptance of Islam amongst

British fans, [showing that] athletes can promote diversity and tolerance [and

help] to build understanding towards communities that face cultural

marginalization.”).

14. See id. (quoting Cameron Mitchell, Chief Executive Officer at Majid Al

Futtaim Leisure, Entertainment & Cinemas, who sees sports as a tool of social

change)

15. See Video of Whitlock by PragerU, Sports Can Bring Us Together. So Get The

Politics Out,

AILY

IRE

posted June 21, 2021, available at https://

www.dailywire.com/news/watch-sports-can-bring-us-together-so-get-the-politics-out

[https://perma.cc/AB67-UQBF] (quoting Whitlock’s take).

The best example of this, says Whitlock, was when the mixed-race South

African rugby team won the 1995 World Cup, only a year after the formal

end to apartheid in South Africa. Sports has also been a unifying force in

the United States, such as when Jesse Owens, a black [O]lympic sprinter

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But, Whitlock cautions that, just because sports have been

unifying in the past, doesn’t mean they will stay so. He

cites the decision of former San Francisco 49ers player

Colin Kaepernick to take a knee during the national an-

them. “We all know what happened next. . . . [J]ust as

sports has the power to unite, we have discovered it also

has equal power to divide.”

We now have

another

example of how sports can divide us—there is

tension between those who do not want the Covid-19 vaccination,

and those who are vaccinated and concerned that the vaccine-hesi-

tant are prolonging the pandemic and endangering lives. That ten-

sion is exemplified by Buffalo Bills wide receiver Cole Beasley’s

statement that he would refuse the vaccination if the NFL required

it, and even retire if necessary.

His critics, on the other hand, find

it astounding that he is willing to “increase his risk of catching the

deadly disease” while claiming a “right to spread it to his teammates

and others.”

and long-jumper, won four gold medals at the 1936 Olympics in Nazi

Germany. Only two years later, another black American, Joe Louis, scored

a first-round knockout against Max Schmeling, a German heavyweight

boxer.

Id.

16. See id. (“Players across the NFL followed Kaepernick’s lead, kneeling, lock-

ing arms, and even raising fists during the national anthem. Then athletes from

other sports joined in. . ..”).

17. See Nick Wojton, Bills’ Cole Beasley Does Not Regret COVID Vaccine Comments,

ILLS

IRE

(June 23, 2021), https://www.msn.com/en-us/sports/nfl/bills-cole-

beasley-does-not-regret-covid-vaccine-comments/ar-AALmdmQ?ocid=uxbndlbing

[https://perma.cc/W7YD-D45E] (detailing initial press conference where Beasley

staunchly opposed Covid vaccination).

18. See Ron Borges, Cole Beasley Provides Scientific Proof There Is No Vaccine for

Being Stupid . . . Honest to God,

EWSBREAK

(June 24, 2021), https://

www.newsbreak.com/news/2290488344383/cole-beasley-provides-scientific-proof-

there-is-no-vaccine-for-being-stupid-honest-to-god. [https://perma.cc/5CR9-

QEU6] (“It is no surprise there are ‘anti-vaxers’ in the NFL, as there are in all

walks of life.”). On July 22, 2021, the NFL announced a new policy to punish teams

experiencing a covid outbreak. See id. (describing new policy). This policy said,

if a game cannot be rescheduled during 18-week schedule due to COVID-

19 outbreak among unvaccinated players, team with outbreak will forfeit

and be credited with loss). . . . In addition, players on both teams will not

be paid for the lost contest, and the team responsible for the cancelled

game due to unvaccinated players will cover financial losses and be sub-

ject to potential discipline from the Commissioner’s office.

Id. See Becky Sullivan, The NFL Warns Teams Will Forfeit Games And Players Won’t Be

Paid In COVID Outbreaks,

NPR

(July 22, 2021), https://www.npr.org/2021/07/22/

1019461203/nfl-penalties-teams-outbreaks-unvaccinated-players-covid-forfeit-

games [https://perma.cc/XQ9F-34NA] (acknowledging procedures NFL has put

in place). See also Kevin Patra, NFL Informs Clubs That COVID-19 Outbreaks Among

Unvaccinated Players Could Lead to Forfeited Games,

ROUND THE

NFL

(July 22,

2021), https://www.nfl.com/news/nfl-covid-19-outbreaks-unvaccinated-players-for-

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The purpose of this essay is to reflect upon the effects of the

Covid-19 pandemic during the fall 2021 NFL season, and to argue

that the NFL should have required, of anyone entering an NFL sta-

dium, evidence of a Covid-19 vaccination. I begin Section II with

the cultural divisions in our country, to provide a context for my

criticism of the NFL; I concede that “following science” is not an

unambiguous concept, and that in the culture wars, people see

even scientific data differently.

In Section III I survey the reasons

for vaccine hesitancy to clarify what the NFL was facing just before

the 2021 fall season, as it is likely that many fans were not vacci-

nated; I highlight the likelihood that a vaccine mandate could have

encouraged vaccinations and helped to end the pandemic.

Sec-

tion IV addresses briefly the fall 2021 NFL attendance policy

, and

in Section V I justify my criticism of that policy on the basis of pub-

lic health, even while I acknowledge the problems with, and barri-

ers to, my argument—including state laws prohibiting vaccine

mandates, enforcement problems, and the prospect of claims for

medical or religious exemptions from any vaccine mandate.

I be-

lieve that the NFL should have either played all games in stadiums

located in states allowing vaccine mandates or—although the law is

unstable in this area—challenged the relevant state prohibitions

against vaccine mandates.

In any event, a vaccine mandate would

have been expensive, with logistical complications, but I conclude

in section VI that when the NFL faced a policy choice, it chose the

wrong side in the culture wars, unwittingly supporting science skep-

ticism while lacking the courage to sacrifice profits to ensure fan

health.

feit-cancelled-game?campaign=twitter_atn [https://perma.cc/22ZF-AN49] (dis-

cussing full text of new policy, delivered to clubs as a 10-page memo).

19. See infra notes 31-51 and accompanying text.

20. See infra notes 52-74 and accompanying text.

21. See infra notes 75-83 and accompanying text.

22. See infra notes 84-141 and accompanying text.

23. For an in-depth analysis of the Norwegian Cruise Lines’ successful chal-

lenge of the Florida mandate see infra notes 93-97 and accompanying text. Some

state governors have prohibited vaccine mandates, and even if those prohibitions

were overturned as beyond a governor’s authority, the state legislature could pass

similar laws regulating business within the state. See Kathryn Watson, Can Businesses

Require Proof of Vaccination? Experts Say Yes,

CBS NEWS

(Apr. 13, 2021), https://

www.cbsnews.com/news/can-businesses-require-vaccination-proof-experts-say-yes/

[https://perma.cc/C9Y2-FP7W] (quoting Walter Olson, senior fellow at the Cato

Institute’s Robert A. Levy Center for Constitutional Studies) (stating governors

will have difficult time restricting “private companies that receive no government

funding from requiring proof of vaccination to enter”).

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II. WE LIVE IN TWO DIFFERENT WORLDS

[W]hether or not a statement is believed depends far less on its veracity

than on the conditions of its “construction”—that is, who is making it, to

whom it’s being addressed and from which institutions it emerges and is

made visible.

“But I just want to tell my side of the story.”

“There are not sides of a story,” Marco says. “There are just different

stories. People will either believe yours or the other one. Usually the other

one.”

The controversy over vaccine mandates has everything to do

with the current cultural divide in the U.S., and especially one as-

pect of that divide—the crisis of expertise.

We often hear ques-

tions nowadays from colleagues, friends and family, whether in

discussions of climate change,

the Covid pandemic, or the safety

of vaccines:

“How can those people ignore the obvious facts? How

can they be so lost in their bubble? Who are their so-called ex-

24. See Ava Kofman, Bruno Latour, The Post-Truth Philosopher, Mounts a Defense of

Science,

N.Y. T

IMES

(Oct. 25, 2018), https://www.nytimes.com/2018/10/25/maga-

zine/bruno-latour-post-truth-philosopher-science.html [https://perma.cc/K3WZ-

DKP5] (quoting Bruno Latour’s take on how to formulate and disseminate

information).

25. See Sam Lipsyte, My Apology,

ORKER

(June 28, 2021), https://

www.newyorker.com/magazine/2021/07/05/my-apology [https://perma.cc/

VE3B-2JVF] (discussing author’s fictional narrative that focuses on differing points

of view).

26. See Gil Eyal,

RISIS OF

XPERTISE

(Polity Press

2019) (popularizing

term “crisis of expertise”).

27. See John Cook, Countering Climate Science Denial and Communicating Scientific

Consensus, Climate Science,

XFORD

. E

NCYCLOPEDIA

(Oct. 26, 2016), https://

oxfordre.com/climatescience/view/10.1093/acrefore/9780190228620.001.0001/

acrefore-9780190228620-e-314 [https://perma.cc/ZV8Z-H4HD] (noting scientific

consensus on human-caused global warming). See also Frank Luntz, The Environ-

ment: A Cleaner, Safer, Healthier America

, L

UNTZ

. C

(2002) (stating market re-

search shows that many voters “believe that there is no consensus about global

warming in the scientific community”).

28. See Adam Hadhazy, Anti-Vaccination Groups Dealt Blow as Lancet Study is Re-

tracted,

OPULAR

ECHANICS

(Feb. 5, 2010), https://www.popularmechanics.com/

science/health/a5008/4344963/ [https://perma.cc/M9Z4-UTBX] (finding

claims of vaccines causing autism were legitimized by a 1998 study by Dr. Andrew

Wakefield in The Lancet medical journal, but that article was retracted on Feb. 2,

2010, due to accusations of unethical and irresponsible research). Recently, there

are concerns, likely unjustified, about the dangers of covid vaccines. See Kelly Mc-

Laughlin & Yelena Dzhanova, Experts Warn Anti-Vaxxer Concerns About a COVID-19

Vaccine Could Slow the End of the Pandemic,

. I

NSIDER

(Dec. 3. 2020), https://

www.msn.com/en-us/health/medical/experts-warn-anti-vaxxer-concerns-about-a-

covid-19-vaccine-could-slow-the-end-of-the-pandemic/ar-BB1bB8RH [https://

perma.cc/F7TX-VY6G] (illustrating effects of negative media around Covid-19

Vaccine).

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perts?” And of course, I do not mean to imply that it is only one

“side” is asking those questions. Both sides in the “culture wars”

view the other as living inside a bubble or an echo chamber.

Fox

News and CNN are “said [to] report as if from alternate uni-

verses.”

These divisions have legal and policy consequences, as we

have seen in the suggestion that the Trump administration re-

flected an anti-scientific bias in appointments to head science-re-

lated government agencies as well as in its response to the Covid

pandemic.

While scholars agree that 21st-century technological

growth and the digital age has exacerbated the “tribal” divisions in

the U.S. and internationally,

the phenomenon of citizens living in

“two different worlds,” in “alternative realities,” is hardly new.

About thirty years ago, Michiel Schwarz and Michael Thomp-

son, focusing on risk assessment in policy contexts, highlighted the

role of cultural cognition in ongoing clashes of contradictory cer-

tainties and plural rationalities.

For example, the contradictory

29. See Eli Pariser,

ILTER

UBBLE

: H

OW THE

ERSONALIZED

EB IS

HANGING WHAT WE

EAD AND

OW WE

HINK

(

Penguin Books, 2011) (arguing

term “filter bubble”—a state of intellectual isolation brought on by website algo-

rithms that filter out disagreeable information—is an advance over the term “echo

chamber.”).

In the filter bubble, there’s less room for the chance encounters that

bring insight and learning. . . . By definition, a world constructed from

the familiar is a world in which there’s nothing to learn. If personaliza-

tion [via filters] is too acute, it could prevent us from coming into contact

with the . . . preconception-shattering experiences and ideas that change

how we think about the world and ourselves.

Id. at 13 (describing ramifications of filter bubble). Moreover, when a filter bubble

occupant does confront an opposing perspective, logical arguments may not

sound compelling due to identity politics. See Marcus Gilroy-Ware

, T

RUTH

BOUT

AKE

EWS

, (Repeater Books, 2020) at 19 (“[P]olitics is not just about mak-

ing the most logical argument. It also needs to be appealing to the imagination

and identity of the people it concerns, and is often a case of trying to convince

people “who we are” in terms of shared identity and values.”).

30. See Reed Richardson, Dueling Chyrons: CNN, Fox News Report From Alternate

Universes During Trump’s Bizarre Coronavirus Briefing,

EDIAITE

(Apr. 13, 2020),

https://www.mediaite.com/news/dueling-chyrons-cnn-fox-news-report-from-alter-

nate-universes-during-trumps-bizarre-coronavirus-briefing/ [https://perma.cc/

6KRZ-V77G] (citing differences in coverage and viewpoint).

31. See Shi-Ling Hsu, Anti-Science Politics, 75 U.

IAMI

L. R

405 (2021)

(referencing Trump administration expanded depth and breadth of attacks on

science by displaying outward animosity towards scientific processes).

32. See

ILROY

-W

ARE

, supra note 29, at 5 (“[T]echnology platforms [enable]

misinformation and disinformation. . ..”). See also Hsu, supra note 31, at 456 (“So-

cial media certainly feeds oxygen to crackpot science. . .”).

33. See Michiel Schwarz & Michael Thompson

, D

IVIDED

TAND

: R

EDEFIN-

ING

OLITICS

, T

ECHNOLOGY AND

OCIAL

HANGE

(Univ. of Penn. Press, 1990) at 33

(“If different actors, in the same debate, cognize differently (that is, if they see

things differently and know things differently), then they will inevitably be operat-

ing with different definitions of what is there. The debate, therefore, will entail

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certainties

between the producer of a genetically-modified (GM)

food product (that the product is safe) and an anti-GM activist (that

the product is unsafe) might be explained by reference to differing

perceptions of nature as, respectively, robust and vulnerable. For

Schwarz and Thompson, these contradictory views of nature “lie be-

yond the reach of both orthodox scientific method and the conven-

tional notion of ‘decision making under uncertainty.’”

“Another

way of putting it is that each actor is perfectly rational, given his or

her convictions as to how the world is. . . . The situation is one of

plural rationality . . . .”

In a similar 2008 study of cultural cogni-

tion in the debate over the risks of synthetic

biology

politically con-

servative and religious opposition to such “Frankenstein” science

was associated with an individualistic and hierarchical (i.e., restrict-

ing choices) cultural worldview, whereas those with a communitar-

ian and egalitarian worldview were less sensitive to the risks.

The

the clash of differently drawn boundaries and the contention of incompatible rules

of closure.”).

34. See id. at 4 (referencing grey areas in decision making as result of personal

perception).

35. See id. at 6 (challenging view that science, “for all its admitted uncertain-

ties, is factual” and not driven by values). Schwarz and Thompson concluded:

Anthropologists and sociologists of knowledge have shown us that what

are considered facts depends ultimately on an accepted framework of so-

cial (and therefore evaluative) premises. Even scientific knowledge,

whilst not perhaps wholly fluid, is certainly plastic in the sense that it is

socially negotiated (science being a social activity) and molded by values

of various kinds.

See id. at 18-19 (arguing environmental “impact assessments, far from reflecting

conflicting evaluations of the facts, involve rival interpretive frames in which facts

and values are all bound up together”).

36. See generally David S. Caudill, Synthetic Science: A Response to Rabinow, 21 L. &

ITERATURE

431

(2009). (“Some critics consider idea of creating artificial orga-

nisms in the laboratory to be a frightening example of scientific hubris, evocative

of Faust or Dr. Frankenstein.”). In less literary terms, synthetic biology provokes

“fears about scientists ‘playing god’ and raises deeper philosophical and religious

concerns about the nature of life itself and the process of creation.” See id. (stating

fears raised about synthetic biology).

37. See Gregory Mandel et al., The Cultural Cognition of Synthetic Biology Risks: A

Preliminary Analysis,

ULTURAL

OGNITION

ROJECT AT

ALE

L. S

(Sept. 5, 2008),

http://ssrn.com/abstract=1264804 [https://perma.cc/55U4-RQBC] (confirming

link between cultural values and disputes over environmental risks, and demon-

strating curious reversal of expectations—those who are not sensitive to risks of

synthetic biology because they admire secular science are suddenly sensitive to

risks of global warming and nuclear power, because they are willing to challenge

authority).

In general, individuals who hold relatively egalitarian values tend to be

more risk sensitive and those who hold relatively hierarchical values more

risk skeptical concerning technological and environmental risks . . . .

[R]ecognition of global warming and nuclear power risks, for example,

tends to be associated with challenges to authority, [which] repels per-

sons who are culturally hierarchical, politically conservative, and relig-

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relevance of these analytical frameworks nowadays is that while

much has changed, we should not be provincial and assume that

our seemingly striking, contemporary cultural divisions over scien-

tific and political matters are new.

The NFL therefore faced a complex culture as it responded to

the Covid-19 pandemic and began to set League policy for its

games. There were not a set of facts that were obvious to everyone

to guide the NFL’s decision regarding attendance requirements.

Instead, there was a dilemma—a choice between appeasing those

who oppose vaccine mandates or appeasing those who focus on

public health (to be fair, those opposed to vaccines also likely do so

out of concern for their health). Neither “side” could convince the

other to change, and the NFL was not capable of establishing a pol-

icy that all fans will support.

In the broader culture wars, there is a tendency to oversim-

plify—some critics often talk of those who live in an “alternate real-

ity” as if the critics live in the “real” world. However, many of the

differences between the two sides in the culture wars reflect differ-

ent values and visions for the nation. As sociologist Nissim Mizrachi

explained, with respect to the working-class voters in Israel who sup-

ported Netanyahu:

The problem [is not that they were] confused about what

was best for them. They weren’t suffering from . . . “false

consciousness”. . . . [They] were consciously spurning lib-

eralism for a reason: what they see as the endgame of the

liberal worldview is not a world they wish to inhabit.

One need only think of the abortion rights controversy, immigra-

tion policies, or the supposed attacks by the left on religious free-

dom or gun rights, to recognize that the divisions in the culture

wars are not simply about misinformation from unreliable internet

sources—they are about values, identities, and foundational com-

mitments to a way of life. And those on the right do not have a

ious; recognition of synthetic biology risks, in contrast, coheres with

resentment of a form of cultural secularism, symbolized by science, that is

. . . subversive of traditional forms of authority.

Id.

38. See David M. Halbfinger, Explaining Right-Wing Politics in America, Via the

Middle East, N

.Y. T

IMES

(

Dec. 19, 2020), at A16 (stating both working-class Mizrahi

voters and the Trump voters “see themselves as their countries’ most patriotic citi-

zens and demonize the left and its allies in the news media, academia and other

liberal redoubts as traitorous enemies. Both . . . feel disdained by those elites, who

dismiss their views as racist, ignorant or unwittingly self-defeating”). See also id.

(representing the views of Nissan Mizrachi).

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monopoly on foundational commitments—both left and right have

a moralized anchor “around which to understand the world.”

The delusional claim not to have any ideology. . .is almost

always a camouflage. Just as in the joke about one fish say-

ing to the other “what’s water?”. . . the claim not to have

any conscious ideological positions at all signifies at best

that the person making such a claim has simply absorbed

the dominant ideology.

One can certainly argue that there is no moral equivalency between

the opposing ideologies in the culture wars, and that the views of

one side will lead to superior outcomes in terms of fairer opportu-

nities for success, racial and gender equality, public health, and

helping those in need. But the notion that any group occupies a

neutral center in politics is a myth. Likewise, with respect to scien-

tific facts in the crisis of expertise, some humility is also warranted.

The “Because Science” and “Trust the Science” t-shirts, worn by

those on the left who see the culture wars as a struggle between

those with apolitical scientific facts against anti-science ideologues,

are also oversimplifications. Even with something as clear as the

much-needed coronavirus vaccine, there are

all kinds of extra-scientific variables: moral assumptions

about what kind of vaccine testing we should pursue (one

reason we didn’t get the “challenge trials” that might have

delivered a vaccine much earlier); legal assumptions about

who should be allowed to experiment with unproven treat-

ments; political assumptions about how much bureau-

cratic hoop-jumping it takes to persuade Americans that a

vaccine is safe.

It is never as simple as just “following the science.” If one assumes

science is always right, that position is easily discredited by high-

lighting the publication by

The Scientist

of the “top retractions of

2020.”

39. See Gilroy-Ware

supra note 29, at 63 (noting contrasting world views in

abortion rights debate).

40. See id. at 209 (discussing the implications of adhering to the dominant

ideology).

41. See Ross Douthat, When You Can’t Just Trust the Science,

N.Y. T

IMES

(Dec. 20,

2020), at SR 9 (listing variables and obstacles which have stalled vaccine roll out).

42. See Retraction Watch Team, The Top Retractions of 2020: The Retraction

Watch Team Takes a Look at the Most Important Publishing Mistakes This Year,

CIENTIST

(Dec. 15, 2020), https://www.the-scientist.com/news-opinion/the-top-retractions-

of-2020-68284 [https://perma.cc/J62J-NV8D] (referencing research article claim-

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The clich

e is that people should “follow the science” and

do whatever “science says.” But the truth is that science

says many things at once. Science says that the coronavirus

can last one month on surfaces; it also says it’s vanishingly

rare to get the coronavirus from surfaces. Bad studies,

good studies, and mediocre studies are all part of the

cacophonous hydra of “science” that is constantly “saying”

stuff.

When a decision about whether to require vaccinations to attend a

professional football game needed to be made, and the science was

not absolutely clear, a risk analysis needed to be made. With no

NFL vaccination mandate, there was arguably a greater risk of

Covid-19 infections—the scientific consensus is that vaccine man-

dates work.

While one can easily sympathize with the NFL’s di-

lemma—this has been a difficult year for all business enterprises—

the NFL should have chosen public safety over popularity.

III. VACCINATION HESITANCY AS A CULTURAL

PHENOMENON

[W]e can break people down. . .into three groups—vac-

cine enthusiasts (those who are already vaccinated or defi-

nitely plan to get vaccinated), vaccine hesitant (unsure but

persuadable), and anti-vaxxers. . .. The vaccine hesitant

group is further broken down into three subgroups: the

watchful (those who are waiting to see how everything

goes), the cost-anxious (those with resource barriers like

time or money to vaccination), and the system distrusters

ing virus was transmitted through surface contact); See Shane Riddell et al., The

Effect of Temperature on Persistence of SARS-CoV-2 on Common Surfaces, 17 No. 145

I-

ROLOGY

1 (2020) (finding it to be “a greatest-hits compilation of research er-

rors.”); See Derek Thompson, Hygiene Theater Is Still a Huge Waste of Time,

TLANTIC

(Feb. 8, 2021), https://www.theatlantic.com/ideas/archive/2021/02/hygiene-the-

ater-still-waste/617939/?campaign_id=9&emc=edit_nn_20210211&instance_

id=27043&nl=the-morning&regi_id=100596401&segment_id=51522&te=

1&user_id=4f435818fe714149705b758320ac43f9 [https://perma.cc/35ZX-6D6Z]

(stating grimy surfaces are not problem; cleaning subways and buses every night is

a waste of money).

43. See Thompson, supra note 42 (highlighting imperfect art of science and

how initial facts are held onto even when disproven).

44. See David Leonhardt & Ian Prasad Philbrick, Over the Noise, One Fact Rings

True: Vaccine Mandates Have Saved Lives,

N.Y. T

IMES

(July 24, 2021), at A13 (state-

ment of Dr. C

eline Gounder) (“The takeaway message remains, if you’re vacci-

nated, you are protected. . . . You are not going to end up with severe disease,

hospitalization, or death. . . .Companies. . . .that decide to enact vaccine mandates

will almost certainly save American lives by doing so.”).

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(those distrustful of the medical establishment, but not

necessarily anti-vaccine).

With whom are the sports leagues dealing when confronted with

fans who are for some reason not vaccinated? It turns out that the

reasons that one may be vaccine hesitant are bafflingly varied and

complex; even summaries like the one in the foregoing epigram (3

subgroups) inevitably oversimplify the situation. For example, one

study, using a psycho-behavioral segmentation approach, divided

the hesitant portion of the US population into four groups: the

watchful, the cost-anxious, the system-distrusters, and the Covid

skeptics.

While such schemes are helpful, they raise questions as

why

the watchful are waiting, and which systems are not trusted

or merit skepticism.

In response to a

New York Times

column arguing that lack of

trust in the “system,” and not “vaccine hesitancy,” explains low vac-

cination rates,

the response of many readers was impatient:

“THIS IS INSANE. Just require it. Enough.”

“It’s time to. . .[require]vaccines to go back to school, to

work, to enter stores, to travel. I don’t care about your ‘be-

liefs’; this is a public health crisis, and the willfully unvac-

cinated are a menace to others. . ..”

45. See Steven Novella, The Causes of Vaccine Hesitancy: The Vaccine Hesitant Are

Now the Front Lines of the Battle to Contain COVID, E

VIDENCE

-B

ASED

. (

May 19,

2021), https://sciencebasedmedicine.org/the-causes-of-vaccine-hesitancy/

[https://perma.cc/3G25-D6KT] (discussing various views on Covid vaccination).

Decision making around vaccination entails complex mix of cultural,

psychosocial, spiritual, political, and cognitive factors. Reasons for vac-

cine hesitancy fit into 3 categories: lack of confidence (in effectiveness,

safety, the system, or policy makers), complacency (perceived low risk of

acquiring [vaccine-preventable diseases]), and lack of convenience (in

the availability, accessibility, and appeal of immunization services, includ-

ing time, place, language, and cultural contexts).

Shixin (Cindy) Shen & Vinita Dubey, Addressing vaccine hesitancy: Clinical guidance

for primary care physicians working with parents, 65(3)

. F

. P

HYSICIAN

. 175–181

(2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6515949/ (explaining

what factors may contribute to people’s decision making on whether to get

vaccine).

46. See Sema Sgaier, Meet the Four Kinds of People Holding Us Back From Full

Vaccination,

N.Y. T

IMES

(May 18, 2021), https://www.nytimes.com/interactive/

2021/05/18/opinion/covid-19-vaccine-hesitancy.html [https://perma.cc/JRU9-

A8V6] (categorizing four groups of vaccine averse individuals).

47. See Gina Bellafante, Free Doughnuts Aren’t Going to Boost Vaccination Rates,

N.Y. T

IMES

(July 9, 2021), https://www.nytimes.com/2021/07/09/nyregion/free-

doughnuts-arent-going-to-boost-vaccination-rates.html [https://perma.cc/HXX2-

T2V2] (noting citizens are skeptical because they think government will use vac-

cine programs to track people).

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“I would love to have a government-issued vaccine pass-

port. . .that would get me onto Covid-19-vaccinated-only

flights, movie theatres and concert venues. . ..”

The idea of vaccine passports, which makes sense to so many con-

cerned citizens, is problematic in several respects. The authors of a

March 2021 paper from the University of Oxford’s Centre on Mi-

gration, Policy and Society argued that

vaccination passports will not become the main tool in the

fight with the COVID-19 crisis and are unlikely to play a

positive role in the mitigation of its impact. There is no

clear and straightforward connection to safety and secur-

ity, while their rapid introduction might have similar con-

sequences to opening Pandora’s box of discrimination

and stigmatization.

Other substantial barriers to vaccination passports become appar-

ent, including (i) ethical and social concerns, such as the fact that a

passport requirement to participate in common activities represents

a proxy of a (frequently unpopular) government

obligation

to get

vaccinated, and (ii) legal concerns related to privacy and data pro-

tection given the likely “electronic or digital element” in any vacci-

nation passport program.

Even if we reject the idea of vaccination

48. See Reader Comments,

N.Y T

IMES

(July 18, 2021) at MB 3; See also Letters to the

Editor: ‘I’ve had enough’: Readers Are Furious at Vaccine Refusers,

NGELES

IMES

(July 21, 2021), https://www.msn.com/en-us/news/us/letters-to-the-editor-ive-

had-enough-readers-are-furious-at-vaccine-refusers/ar-AAMoqNx?li=bbnb7Kz

[https://perma.cc/L6NS-VLPT] (statement of Mitchell Zimmerman) (“Enough is

enough. Tolerance for those who insist on defying reality must end.”).

“I think there’s some real anger brewing out there among vaccinated

folks that’s not getting much attention,” David Nir, the political director

of Daily Kos, wrote. My [N.Y. Times] colleague Roni Caryn Rabin reported,

“Many inoculated Americans are losing patience with vaccine holdouts.”

Kay Ivey, Alabama’s Republican governor, was harsher: “Time to start

blaming the unvaccinated.”

See David Leonhardt, Mandate Momentum: Vaccine Mandates are on the Rise, and they

Will Probably Have a Bigger Effect than Mask Mandates,

N.Y T

IMES

(

July 29, 2021),

https://www.nytimes.com/2021/07/29/briefing/mask-mandates-

coronavirus.html [https://perma.cc/4QJK-3X4E] (noting vaccine’s increased effi-

cacy over masks in ending pandemic; however, this is weighed against people push-

ing back against emergency use authorized vaccine).

49. See Oskar Josef Gstrein et al., A Terrible Great Idea?COVID-19 ‘Vaccination

Passports’ in the Spotlight, Working Paper No. 153 (Mar. 2021),

ENTRE ON

IGRA-

TION

, P

’

& S

’

NIV

XFORD

, at 2, https://www.compas.ox.ac.uk/wp-con-

tent/uploads/WP-2021-153-Gstrein-Kochenov-Zwitter-A-Terrible-Great-Idea-

Vaccination-Passports.pdf [https://perma.cc/Y2F9-8NDD] (identifying drawbacks

and advantages of vaccine passports).

50. See id. at 17-19 (“Current developments in public administration suggest

that many solutions [to the pandemic] will have at least some sort of electronic or

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passports, and decide to require vaccination cards, that option un-

fortunately introduces the genuine possibility of fraud on the part

of the unvaccinated—a “focus group of vaccine-hesitant Trump vot-

ers” led by Republican pollster Frank Luntz

revealed that [m]ost participants said they would want a

fake vaccination card that would allow them to claim they

had received shots, after Luntz granted them anonymity to

speak honestly. “One-thousand percent,” one woman said.

“If I have a fake vaccine card, I can go anywhere,” added a

man. . ..

Such responses should raise concerns about sports stadiums, but as

more and more businesses require proof of vaccination, the NFL

would not be alone if it had chosen to confront and strategically

find a solution to the problem of fraud.

Setting aside another challenge, the problem of vaccine ac-

cess,

there is also high vaccine hesitancy among young Ameri-

cans;

their hesitancy perhaps feels justifiable due to fears of

myocarditis and pericarditis, the cases of which “have been most

common in male adolescents and young adults.”

This raises an-

other question about whether it is appropriate to label as “hesi-

digital element. However, [given] historic lessons from the adoption of data reten-

tion systems, this is worrying since digital solutions have a tendency towards ‘mis-

sion creep’ as time evolves and despite the original justification for their existence

disappearing.”).

51. See Dan Diamond, “I’m Still a Zero”: Vaccine-Resistant Republicans Warn That

Their Skepticism is Worsening,

ASH

. P

OST

(Apr. 20, 2021), https://

www.washingtonpost.com/health/2021/04/20/vaccine-hesitant-republicans/

[https://perma.cc/LF7V-FDK4] (illustrating concerns about possible fake vaccine

card usage).

52. See Lauren Dubois Why Vaccine Hesitancy Is Still An Issue In COVID-19 Fight,

’

. T

IMES

(July 3, 2021), https://www.ibtimes.com/why-vaccine-hesitancy-

still-issue-covid-19-fight-3242584 [https://perma.cc/V6W2-4A43] (statement of Dr.

Lisa Cooper) (discussing low vaccination rates in black communities “may be due

in part, to vaccine hesitancy, but they may also be due to inequities in vaccine

access. . . . Many African Americans in the South live in rural areas with limited

access to health care facilities. . . . Furthermore, many people may have other stres-

sors related to housing, food, or job insecurity, which may be preventing them

from getting vaccinated.”).

53. See Emily Anthes, Younger Adults are Less Likely to Get Vaccinated Than Their

Elders, New C.D.C. Studies Say,

N.Y. T

IMES

(June 21, 2021), https://

www.nytimes.com/2021/06/21/health/vaccination-young-adults.html [https://

perma.cc/TPN6-D4TM] (detailing factors which drive older adults to get vacci-

nated at much higher rate than young adults).

54. See Claire McCarthy, New Information for Parents on Myocarditis and COVID-

19 Vaccines,

ARV

. H

EALTH

LOG

(July 1, 2021), https://www.health.harvard.edu/

blog/new-information-for-parents-on-myocarditis-and-covid-19-vaccines-

202107012523 [https://perma.cc/ECP5-QV8B] (noting risks of serious side effects

are statistically unlikely but not unheard of).

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tancy” a reasonable decision based on, for example, a concern that

someone with small children and no child care, or with an econom-

ically essential job, might get sick from the vaccine—this is perhaps

better labeled as “vaccine impeded.”

One survey found that al-

most “half of vaccine-hesitant respondents said their reasons in-

cluded fear of side effects,” although “lack of trust in the vaccine or

in the government” was also given as a reason.

A Kaiser Family

Foundation poll found that even among those who were influenced

by pro-vaccine messages, the issue of mistrust of science arose:

For many people who got vaccinated, messages from poli-

ticians, national experts and the mass media were persua-

sive. But many other Americans—especially those without

a college degree—don’t trust mainstream institutions.

Then there are the “vaccine indifferent” (not even focused enough

on Covid-19 to be “hesitant”) and the “vaccine ambivalent” (who

see the risks of the disease and the vaccine as equivalent).

Com-

plicating the issue of whether hesitance is justified, the Johnson &

Johnson vaccine raised concerns after “reports of rare but serious

blood clots in at least six women.”

Other concerns include

whether vaccine production was rushed, perhaps for political rea-

sons (i.e., before the 2020 presidential election), and whether test-

55. See Elisa J. Sobo et al., Stop Saying Black People Are “Vaccine Hesitant.” Reasons

For Not Getting Vaccinated Are Much Deeper,

EWSONE

(July 10, 2021), https://new-

sone.com/4172879/disproving-black-vaccine-hesitancy/ [https://perma.cc/

WL8U-V78N] (citing social factors and limited access to vaccines as large contribu-

tors to low vaccination rates).

56. See Nick Trombola, Pitt and CMU Researchers Find COVID-19 Vaccine Hesi-

tancy Trends Based On Occupation,

ITTSBURGH

OST

-G

AZETTE

(May 3, 2021), https:/

/www.postgazette.com/news/health/2021/05/03/Pitt-researchers-vaccine-hesi-

tancy-trends-occupations-industries-health-vaccination-covid-19/stories/

202105030109. [https://perma.cc/NDV8-59DX] (discussing risk of side effects

playing a role in people’s decision making to receive vaccine). As to fear of side

effects, we often hear experts say the risk of side effects is very low, but “laypeople

also tend to understand risk from an ego-centered perspective, as the probability

of harm to themselves and their loved ones, rather than distributed over a popula-

tion, where they themselves can be risks to others.” See Eyal, supra note 26 at 72.

57. See David Leonhardt, Vaccine Persuasion: Many Vaccine Skeptics Have Changed

Their Minds,

N.Y T

IMES

(

July 7, 2021

)

, https://www.nytimes.com/2021/07/19/

briefing/vaccine-skepticism-vaccination-drive.html [https://perma.cc/Y2TG-8S92]

(noting vaccine hesitancy related to educational level and government distrust).

58. See Sobo et al., supra note 55 (finding individuals are not hesitant but

rather feel Covid is not a large threat).

59. See Paola Rosa-Aquino, What We Know About the Johnson & Johnson Pause

and Vaccine Hesitancy, I

NTELLIGENCER

(Apr. 15, 2021), https://nymag.com/intelli-

gencer/2021/04/what-we-know-about-the-j-and-j-pause-and-vaccine-hesitancy.html

[https://perma.cc/5RZS-KU6L] (documenting Johnson & Johnson’s 10-day pause

after six recipients experienced blood clots as a side effect).

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ing was adequate (e.g., why only an emergency FDA approval?).

Finally, psychological reasons for vaccine hesitance have also been

offered; for example, in the U.K. and Ireland:

Vaccine hesitance/resistance has. . .been associated with

conspiratorial, religious, and paranoid beliefs, while mis-

trust of authoritative members of society, such as govern-

ment officials, scientists, and health care professionals, has

been linked to negative attitudes towards vaccinations, as

has endorsement of authoritarian political views, societal

disaffection, and intolerance of migrants.

With the onset of the Delta variant of Covid-19 in mid-2021, a large

number of those who would probably or definitely not get vacci-

nated believed that “U.S. officials are exaggerating the risk of the

delta variant—and 79% think they have little or no risk of getting

sick from the coronavirus.”

Perception of (low) risk alongside po-

litical affiliation (i.e., distrust of the Biden administration messag-

60. See Alberto Coustasse et al., COVID-19 and Vaccine Hesitancy, 44

MBU-

LATORY

ARE

GMT

71-75 (Jan. 2021), https://journals.lww.com/ambulatorycare

management/Fulltext/2021/01000/COVID_19_and_Vaccine_Hesitancy__

A_Challenge_the.10.aspx?context=latestArticles&casa_token=LWQHEi0oJv

AAAAAA:UGhvkFUshxA-xePvbXOm3pVctYGuyTcrmqWaBdaOAFFYKFCX

l06Ga51aZfwbdIuyIpQmoAT2W39ofO7I7HS-wv0. [https://perma.cc/Y6HE-8PAP]

(discussing other concerns contributing to vaccine hesitancy); See also Maggie Fox,

Operation Warp Speed is Fueling Vaccine Fears, Two Top Experts Worry, CNN Health

(June 5, 2020) https://www.cnn.com/2020/06/05/health/warp-speed-

coronavirus-vaccine-worries/index.html [https://perma.cc/P2H7-59HL] (“Opera-

tion Warp Speed’ vaccine program, with its emphasis on quick production and

testing of experimental coronavirus vaccines, is fueling fears already stirred up by

vaccine skeptics. . .”). There are additional concerns of fraud and bias, due to

conflicts of interest, in the regulatory process. See Eugene McCarthy, The Regulatory

Production of Vaccine Hesitance, 86

ROOK

. L. R

. 81, 84 and 96 (2021), https://

brooklynworks.brooklaw.edu/blr/vol86/iss1/3 [https://perma.cc/M832-KLNV]

(“Despite extensive FDA safety protocols, vaccine critics perceive regulatory loop-

holes and occasional financial conflicts of interest as cause for concern in the vac-

cine approval process. In particular, critics express concerns over industry-

sponsored clinical trials, post-market vaccine safety analysis, and the revolving door

between the FDA, CDC, and the pharmaceutical industry.”).

61. See Jamie Murphy et al., Psychological Characteristics Associated With COVID-

19 Vaccine Hesitancy and Resistance in Ireland and the United Kingdom, 12

ATURE

OMM

29 (Jan. 4, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC7782692/ [https://perma.cc/UEK2-GELA] (listing socioeconomic, personal

and cultural reasons for vaccine refusal).

62. See Gary Langer, Vaccine-Hesitant Americans Reject Delta Variant Risk, Posing

Questions For Pandemic Recovery: POLL, ABC

EWS

(July 4, 2021), https://

abcnews.go.com/Politics/vaccine-hesitant-americans-reject-delta-variant-risk-pos-

ing/story?id=78609691 [https://perma.cc/Z9PA-QQ3H] (“Several groups are es-

pecially likely to say it’s being exaggerated, including Republicans (57%),

conservatives (55%), evangelical white Protestants (49%) and rural residents

(47%).”).

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ing) remain strong predictors of vaccine hesitancy.

All of those

reasons together represent the complex social and political situa-

tion facing professional sports leagues and team owners as they

tried in 2021 to devise policies to deal with the Covid-19 pandemic.

However, and most importantly for this essay, it seems that vac-

cination requirements, when they interfere with travel or social

plans, can (unsurprisingly) influence the decision to get vaccinated.

A Kaiser Family Foundation poll of American adults who had (in an

earlier poll) decided to not get vaccinated, or to wait and see,

found that about a fourth of them had changed their minds, not

only because (i) they’ve seen millions safely vaccinated, or (ii)

heard pro-vaccine messages from doctors or family members, but

because (iii) they learned “that not being vaccinated will prevent

people from doing some things”:

There is now a roiling debate over vaccine mandates, with

some hospitals, colleges, cruise-ship companies and others

implementing them—and some state legislators trying to

ban mandates. The Kaiser poll suggests that these [man-

dates] can influence a meaningful number of skeptics to

get shots, sometimes just for logistical reasons.

This presented an opportunity for the NFL to contribute, with a

vaccine mandate, to the defeat of the pandemic. The flip side of

that opportunity is that by foregoing a vaccine mandate, the NFL

unwittingly encouraged the social practices of fans who reject avail-

able vaccinations. A parallel situation persists in the controversy

over masks, insofar as repeal of mask mandates relieved the “social

and even legal pressure for [the unvaccinated] to mask up while

engaging in [public] activities.”

The unvaccinated, “in everyday

63. See Jagdish Khubchandani et al., COVID-19 Vaccination Hesitancy in the

United States: A Rapid National Assessment, 46 J.

MTY

. H

EALTH

270–77 (2021),

https://link.springer.com/article/10.1007/s10900-020-00958-x [https://

perma.cc/D2JJ-CWZ7] (“These findings can be explained by the current polarized

sociopolitical climate and individual COVID-19 risk perceptions across the US.

COVID-19 has been highly politicized in the US.”).

64. See David Leonhardt, supra note 57 (identifying vaccine hesitant individu-

als who have gotten jab to make life easier and enjoy amenities they would other-

wise would not be able to use due to vaccine status).

65. See Aaron Blake, How Many Unvaccinated People Will Stop Wearing Masks

Now?,

ASH

. P

OST

(

May 14, 2021), https://www.msn.com/en-us/news/politics/

how-many-unvaccinated-people-will-stop-wearing-masks-now/ar-BB1gJs1w [https:/

/perma.cc/RRH5-MG2Q] (“An Axios/Ipsos poll. . . .showed that a previous (and

more limited) relaxing of the CDC masking guidance led to a significant increase

in unvaccinated people taking off their masks. While on April 19, 23 percent of

unvaccinated people said they either “never” or only ‘occasionally’ wore a mask,

the number rose to 34 percent by May 3.”).

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public interactions,” can simply take off their masks—they will

blend in with the vaccinated and “won’t really even have to” lie

“about their status.”

Likewise, unvaccinated fans who attended

most NFL games were not identifiable to those sitting, standing, or

eating and drinking near them.

IV. WHAT NFL DECIDED TO DO

The weaknesses in the legal arguments against vaccine mandates have

“been around for a long time now,” [University of Michigan law professor

Nicholas] Bagley said.

On May 25, 2021, the NFL informed its clubs (i) that teams

could allow fans at summer training camps (a change from 2020),

“subject to state and local guidelines,” and (ii) that thirty of the

thirty-two stadiums had received approval from local governments

to open the stadiums at full capacity.

Peter O’Reilly, the NFL’s

executive vice president of club business and league events, added

that the league “will not overlay a fan vaccination policy on top of

any state and local regulation that might exist.”

As early as March

2021, “NFL commissioner Roger Goodell expect[ed] all stadiums

to have full capacity this upcoming season,” and by July 2021, it was

implied that there would be no vaccine requirements for attend-

ance at NFL games.

Some teams also made it clear that vaccina-

66. See id. (“An Economist/YouGov poll released last week showed that 63 per-

cent of Americans who said they didn’t plan to get vaccinated said they felt at least

‘somewhat’ safe socializing indoors with other unvaccinated people without a

mask. . . .[This] suggests nearly two-thirds of those who won’t get vaccinated are

rather prepared to venture out into society and interact with other people who

might or might not be vaccinated.”).

67. See Evan Perez & Tierney Sneed, Federal Law Doesn’t Prohibit Covid-19 Vac-

cine Requirements, Justice Department Says,

CNN

(July 26, 2021), https://

www.cnn.com/2021/07/26/politics/doj-covid-19-vaccine-requirements-olc-opin-

ion/index.html [https://perma.cc/B8J5-WYM8] (quoting Law Professor Michael

Badgley) (discussing skepticism of Justice Department’s legal arguments).

68. See Kevin Seifert, NFL Says Fans Can Attend Training Camps This Season, 30

Teams Given OK to Have Full Stadium Capacity,

ESPN

(May 25, 2021), https://

www.espn.com/nfl/story/_/id/31510724/nfl-says-fans-attend-training-camps-sea-

son-30-teams-given-ok-full-stadium-capacity [https://perma.cc/U3YE-J74V] (iden-

tifying relaxed precautions this season for attendance).

69. See id. (quoting Peter O’Reilly’s statement that the NFL will rely on the

states vaccination policies to determine entry criteria).

70. See Nate Hanson, No, NFL Teams Aren’t Currently Requiring Fans To Be Vacci-

nated Against COVID-19 To Attend Games,

ABC 10

(July 20, 2021), https://

www.abc10.com/article/news/verify/sports-verify/nfl-fans-vaccine-2021-season/

536-6fc6eccd-4e0d-4361-909e-bfb2c0f5b9f1 [https://perma.cc/2MN2-E2ZA] (re-

porting that some states vaccines will be required, but that is not a requirement

imposed by NFL).

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tions would not be required, including the New Orleans Saints,

the Carolina Panthers,

and the New York Giants.

The league was willing to endure expensive schedule changes

by the new policy concerning outbreaks caused by unvaccinated

players—games would be forfeited, “and the team responsible for

the cancelled game due to unvaccinated players would cover finan-

cial losses.”

Significantly, the city of Tokyo was also willing to give

up civic and economic “glory and riches” when it decided to “put

the [2020 Summer Olympics] Games inside an anti-coronavirus

bubble.”

In light of those sacrifices, a vaccination mandate would

not have been overly burdensome, especially given the high stakes

for public health and the possibility that state prohibitions on vac-

cine mandates would not endure legal challenges.

V. WHAT THE NFL SHOULD HAVE DONE

[T]he liberty secured by the Constitution of the United

States to every person within its jurisdiction does not im-

port an absolute right in each person to be, at all times

and in all circumstances, wholly freed from restraint.

There are manifold restraints to which every person is nec-

essarily subject for the common good. On any other basis,

organized society could not exist with safety to its

members.

71. See John Hendrix, Saints: “No Intention” of Requiring COVID Vaccination to

Attend Games,

ATION

(May 15, 2021), https://www.si.com/nfl/saints/news/

saints-no-intention-requiring-covid-vaccination-attend-games [https://perma.cc/

AF8A-WYNJ] (noting vaccinations were initially not required for entrance).

72. See Hank Lee, Panthers To Have 100% Fan Capacity At Home Games in 2021,

WCNC

HARLOTTE

, (May 24, 2021), https://www.wcnc.com/article/sports/nfl/

panthers/carolina-panthers-bank-of-america-stadium-fan-capacity-2021-season/

275-e3fc8dbf-f7f1-443b-93ec-6a45d0793f93 [https://perma.cc/K7P3-95F2] (re-

porting stadium open at full capacity and will not require proof of vaccination).

73. See Ryan Honey, MetLife Stadium to Open at Full Capacity for 2021 NFL Sea-

son, No Masks or Vaccination Proof Required, ESNY (June 17, 2021), https://

elitesportsny.com/2021/06/17/metlife-stadium-open-full-capacity-2021-nfl-season-

no-masks-or-vaccination-proof-required/ [https://perma.cc/2YXZ-Q9DT] (report-

ing Giants and Jets are following lead of other NFL teams by not requiring

vaccinations).

74. See Sullivan, supra note 18 (discussing full text of new policy and game

forfeiture to penalize less vaccinated teams).

75. See Ben Dooley et al., Tokyo Had Expected to Reap Civic and Economic Gold: It

Has Lost Out on Both,

N.Y T

IMES

(Aug. 7, 2021), at B1 (detailing effects of holding

games under Covid precautions, especially its effect on tourism and monetary

gain).

76. See Jacobson v. Mass., 197 U.S. 11, 26 (1905) (holding Henning was not

permitted to refuse smallpox vaccine).

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“No government should order the general public to take a vaccine except

in cases of the most extreme health danger. The matter is different for private

employers, who should be able to set their own workplace rules. . . . It’s an

odd libertarian streak that dislikes government orders to individuals but

then says private employers shouldn’t be free to choose.”

In 1905, the U.S. Supreme Court in

Jacobson v. Commonwealth of

Massachusetts

heard a challenge to a law requiring all Massachu-

setts citizens to get a smallpox vaccine. The court rejected that

challenge—the commonwealth’s police power allows reasonable

health regulations.

One can object that this opinion reflected

and should be limited to the extreme terror of the smallpox epi-

demic, but the holding was followed in a 1922 case involving a San

Antonio city ordinance requiring vaccinations to attend school.

One could also argue that

Jacobson

was overruled or abrogated in

Roman Catholic Diocese of Brooklyn v. Cuomo

where the Court en-

joined capacity restrictions on religious institutions (liquor and

hardware stores were treated better), but “

Cuomo

and

Jacobson

in-

volved entirely different modes of analysis, entirely different rights,

and entirely different kinds of restriction.”

A greater challenge,

however, is Professor Scott Burris’ concern about the “viability” of

Jacobson

now that recent “courts have unveiled a new view based less

on the social contract than on a strong form of libertarianism.”

77. See David Leonhardt, Mandate Momentum: Vaccine Mandates are on the Rise

and They Will Probably have a Bigger Effect than Mask Mandates,

N.Y. T

IMES

(July 29,

2021), https://www.nytimes.com/2021/07/29/briefing/mask-mandates-

coronavirus.html [https://perma.cc/3AX6-8KRU] (quoting the Wall Street Jour-

nal Editorial Board) (“To Mandate or Not to Mandate Vaccines: The FDA should

move faster on final approval to reassure the public.”).

78. 197 U.S. 11 (1905).

79. See id. at 25 (finding police power “must be held to embrace, at least, such

reasonable regulations established directly by legislative enactment as will protect

the public health and public safety”).

80. See Zucht v. King, 260 U.S. 174, 176-177 (1922) (finding compulsory vacci-

nation is within the states’ police powers)

81. See 141 S. Ct. 63, 67 (2020) (applying strict scrutiny because law targeted

religion, violating First Amendment; the limitations were not narrowly tailored to

control the spread of Covid-19).

82. See Klaassen v. Trustees of Ind. Univ., Opinion and Order, Cause No. 1:21-

CV-238 DRL at 43 (U.S. Dist. Ct., N. D. Ind.) (July 18, 2021) (finding against eight

students challenging Indiana University’s vaccine mandate, contending Cuomo

overruled Jacobson).

83. See Scott Burris, Individual Liberty, Public Health, and the Battle for the Na-

tion’s Soul,

. R

(June 7, 2021), https://www.theregreview.org/2021/06/07/

burris-individual-liberty-public-health-battle-for-nations-soul/ [https://perma.cc/

KTS3-454B] (discussing Wisconsin Legislature v. Palm, which overturned Wisconsin’s

COVID-19 emergency measures; and County of Butler v. Wolf, which overturned

Pennsylvania governor’s pandemic restrictions).

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However, the 7th Circuit, in August 2021, relied on

Jacobson

Klaassen v. Trustees of Indiana University

, in a short opinion denying a

motion to enjoin that university’s Covid-19 vaccine mandate, pend-

ing appeal of a District Court’s denial of a request for a preliminary

injunction.

Eight students sued Indiana University, contending

(i) that the vaccine mandate violated the Due Process Clause of the

14th Amendment, (ii) that the rational-basis standard used in

Jacob-

son

did not protect their interests, and (iii) that courts should be

less “deferential to the decisions of public bodies” than

Jacobson

Judge Easterbrook, writing for the 7th Circuit panel, noted that (i)

“a court of appeals must apply the law established by the Supreme

Court,”

and, in any event, (ii) conditions of enrollment,

as well

as vaccine requirements, are common in higher education—the

university offered exemptions for medical and religious reasons

(masks required, but not vaccination), and students “who do not

want to be vaccinated may go elsewhere.”

That appellate decision

was appealed, and the U.S. Supreme Court denied the plaintiffs’

application for injunctive relief.

The much-longer District Court opinion in

Klaassen

represents

a comprehensive guide to the constitutional dimensions of the stu-

dents’ challenge to the vaccine mandate, the best arguments for

and against the mandate, and its justification on the basis of public

health.

The significance of

Klaassen

for this essay is that Indiana is

not a state that prohibits vaccine mandates—there are now good

reasons to suspect that most legal challenges to my proposed NFL

vaccine mandate for fans would not have been successful. In any

84. See Klaassen v. Trustees of Indiana University, Case No. 21-2326 (U.S. Ct.

App., 7th Cir.) (Aug. 2, 2021) (allowing Indiana University’s vaccine mandate to

continue).

85. See id. at 1-2 (stating student’s arguments against mandate).

86. See id. at 2. (referencing Supreme Court’s binding ruling on appeals

court).

87. See id. at 3 (“[A] state university may demand that students read things

they prefer not to read and write things they prefer not to write”).

88. See id. at 2-3 (differentiating Jacobson, where Jacobson “lacked exceptions

for adults,” here “Indiana does not require that every adult member of the public

to be vaccinated”).

89. See Amy Howe, Barrett Leaves Indiana University’s Vaccine Mandate in Place,

SCOTUS

BLOG

(Aug. 12, 2021), https://www.scotusblog.com/2021/08/barrett-

leaves-indiana-universitys-vaccine-mandate-in-place/ [https://perma.cc/Q9RJ-

697E] (“[T]he students’ request [was denied] without comment, without seeking a

response from the state, and without referring the request to the full court for a

vote—suggesting that she and the other justices did not regard it as a particularly

close.”).

90. See Klaassen v. Trustees of Ind. Univ., Opinion and Order, Cause No. 1:21-

CV-238 DRL (U.S. Dist. Ct., N. D. Ind.) (July 18, 2021) (highlighting district court

opinion provided more elaborate reasoning than Circuit Court opinion)

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state where vaccine mandates are allowed, the NFL could almost

certainly institute a vaccine mandate for fans attending games.

The Department of Justice recently confirmed that vaccine man-

dates issued by public agencies

and private businesses

are not prohib-

ited on the basis that the vaccines are subject to an emergency use

authorization.

And so far,

opponents of vaccine mandates haven’t had much luck in

court when challenging the requirements. In June [2021],

a federal judge sided with a Houston hospital when em-

ployees sued to block its Covid-19 vaccine requirement.

Employees, of course, have more rights than patrons of busi-

nesses—the league and team employees in the NFL have such

rights, but the limitations on employers (and accommodations that

may be required) with respect to vaccine mandates in the work-

place are irrelevant to my proposal for stadium attendees.

Like-

91. See Sasha Hupka, No, It’s Not Illegal for Businesses to Require Proof of Vaccina-

tion,

OLITIFACT

(May 26, 2021), https://www.politifact.com/factchecks/2021/

may/26/instagram-posts/no-it-not-illegal-businesses-require-proof-vaccina/

[https://perma.cc/D2LV-8Z9U] (“Legal experts say businesses are allowed to ask

for proof of vaccination from customers. . . . Additionally, businesses can generally

deny entry to unvaccinated customers, provided they offer reasonable accommoda-

tions for people who might be unable to receive a vaccine because of a disability, a

medical condition or their religious beliefs. Experts say a reasonable accommoda-

tion does not necessarily mean the individual would be able to walk into the busi-

ness or access their services in person.”); see also Watson, supra note 23 (“‘It is

lawful and ethical for a business to require proof of vaccination as a condition

of. . .getting service,’ Georgetown Law professor and public health expert Law-

rence Gostin told CBS News.”).

92. See Memorandum Opinion for the Deputy Counsel to the President,

Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring

the Use of a Vaccine Subject to an Emergency Use Authorization (July 6, 2021), http://

cdn.cnn.com/cnn/2021/images/07/26/dojvax.pdf [https://perma.cc/EZ8Z-

KSGU] (concluding section 564 of the FDCA does not “prohibit public or private

entities from imposing vaccination requirements, even when the only vaccines

available are those authorized under Emergency Use Authorization”).

93. See Perez & Sneed, supra note 67 (referring to lawsuit filed by some em-

ployees against Houston Methodist Hospital claiming that hospital’s March 31

mandate required that they receive experimental vaccines); See Bridges et al. v Hous-

ton Methodist Hosp., Case 4:21-CV-01774 (U.S Dist. Ct., S. Dist. Texas) (June 12,

2021) (dismissing case in favor of hospital); see also Deanna Hackney & Holly Yan,

Judge Rules In Favor Of A Houston Hospital Requiring Employees To Be Vaccinated Against

Covid-19, CNN (June 13, 2021), https://www.cnn.com/2021/06/13/us/houston-

methodist-covid-vaccine-lawsuit/index.html [https://perma.cc/4TE6-STU3] (de-

tailing court opinion dismissing appeal of vaccine mandate).

94. See Eric Morath & Sarah Chaney Cambon, Employers Can Require Covid-19

Vaccine Under Federal Law, New Guidance States,

ALL

TREET

(May 28, 2021),

https://www.wsj.com/articles/employers-can-require-covid-19-vaccine-under-fed-

eral-law-new-guidancestates-11622230319 [https://perma.cc/XGK9-TZHS] (dis-

cussing updated guidance by EEOC confirming that employers can require Covid-

19 vaccinations, but also may be required to provide reasonable accommodations).

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wise, any rights under the Health Insurance Portability and

Accountability Act (HIPAA), applicable to healthcare plans and

providers, would not prevent a private business like the NFL “from

asking for proof of vaccination status. . . . Federal law doesn’t re-

strict private businesses from asking for proof of vaccination, al-

though some states may pass their own laws on the issue.”

There

are, however, some limits on businesses dealing with customers—

“The Civil Rights Act applies to all entities and prohibits discrimina-

tion based on race, color, religion, sex and national origin,” and

the Americans with Disabilities Act might require accommodation

of those who cannot be vaccinated (discussed below under

Medical

Exemptions

Otherwise, I agree with Dane S. Ciolino, a professor

at Loyola University New Orleans College of Law, “that a property

owner can decide which people they let in as long as they’re not

excluding them based on categories like race or religion. . . . ‘Un-

vaccinated people are not a protected class,’ Ciolino said.”

In my

view, given the current cultural context, the NFL should have re-

quired vaccination of all fans who attended games. I recognize sev-

eral arguments against that view, to which I respond below.

A. The Challengeable Hurdle: State Laws

The most compelling argument against a fall 2021 NFL vaccine

mandate was that some states prohibited businesses from requiring

vaccinations, thus making it impossible for teams in those states to

enforce such a mandate. For example, on May 3, 2021, the Florida

There are circumstances however that require the employer to provide

reasonable accommodations for employees who, because of a disability or

a religious belief, aren’t vaccinated. For example, the EEOC said as a rea-

sonable accommodation, an unvaccinated employee entering workplace

might wear a face mask, work at a social distance, or be given the oppor-

tunity to telework.

See id. (providing example of EEOC guidance).

95. See Brian Krans, No, Businesses Aren’t Violating Your Rights When They Ask If

You’re Vaccinated,

EALTHLINE

(June 9, 2021), https://www.healthline.com/health-

news/businesses-arent-violating-your-rights-when-they-ask-if-youre-vaccinated

[https://perma.cc/5F29-4E6S] (quoting Joyce Smithey, founder and partner at

employment and labor law firm Smithey Law Group). See also Watson, supra note

23 (quoting Walter Olson).

96. See Hupka, supra note 91 and accompanying text.

97. See Janet Nguyen, Can Businesses Deny You Entry If You Don’t Have A Vaccine

Passport?,

ARKETPLACE

(April 7, 2021), https://www.marketplace.org/2021/04/

07/can-businesses-deny-you-entry-if-you-dont-have-a-vaccine-passport/ [https://

perma.cc/3MQV-SUHT] (quoting Robert I. Field, Public Health Professor at

Drexel University) (stating “proof of vaccination would be indication that you’re

low risk to other customers or to employees of the business and it would be a

reasonable step”).

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governor signed into law Section 381.00316, Florida Statutes, which

provides:

A business entity . . . operating in this state, may not re-

quire patrons or customers to provide any documentation

certifying COVID-19 vaccination or post-infection recovery

to gain access to, entry upon, or service from the business

operations in this state. This subsection does not other-

wise restrict businesses from instituting screening proto-

cols consistent with authoritative or controlling

government-issued guidance to protect public health.

There are, however, states where NFL teams are located that allow a

vaccination requirement, and in my view, games should have been

moved to those states. On dates when an NFL stadium was not be-

ing used by the home team, that stadium could have been used by a

team or teams from a state that does not allow businesses to require

vaccination. Even if a stadium were needed for a home game, that

stadium could be used on an alternative date. Ticket sales would of

course have suffered, but the cost of a pandemic that continues due

to vaccination hesitancy must be considered. More importantly,

state prohibitions may not withstand court challenges.

On August 9, 2021, Norwegian Cruise Line’s parent company,

pursuing a policy of requiring passengers to be vaccinated on its

three cruise lines, was granted a preliminary injunction against

Florida’s prohibition on vaccine mandates.

U.S. District Judge

Kathleen Williams, in a 59-page opinion, stated that the plaintiff

company would likely succeed on the merits of its First Amendment

and dormant Commerce Clause claims,

100

having shown irrepara-

98. See SB 2006 (2021 Florida Legislature), §18, available at https://

www.flsenate.gov/Session/Bill/2021/2006/BillText/er/HTML [https://

perma.cc/J9EY-XBUV]; see also Senate Bill 2006,

LORIDA

ENATE

available at

https://www.flsenate.gov/Session/Bill/2021/2006/?Tab=billHistory [https://

perma.cc/5U3V-V8SX] (quoting legislation which prohibits vaccine mandates in

Florida).

99. See Norwegian Cruise Line Holdings, Ltd., et al. v Scott Rivkees, Case No.

21-22492-CIV-Williams (U.S. Dist. Ct., S.D. Fla.) (Aug. 8, 2012) (noting plaintiff is

holding company of Norwegian Cruise Line, Regent Seven Seas Cruises and

Oceania Cruises; the defendant Rivkees is Florida’s Surgeon General, who leads

the Florida Department of Health).

100. See id. at 55. As to the First Amendment claim, Judge Williams explained:

The Statute prohibits businesses from requiring their patrons to present

documentation certifying COVID-19 vaccination or post-infection recov-

ery for access or services. Fla. Stat. § 381.00316(1). However, nothing in

the Statute prohibits businesses from demanding documentation of a

negative COVID-19 test or any other type of medical or informational

documentation. In fact, business entities are expressly permitted to re-

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ble injury absent a preliminary injunction (monetary losses as well

as lost reputation, trust, and goodwill), and demonstrating that “the

equities and public interest weigh in favor of an injunction.”

101

[While the plaintiff] has demonstrated that public health

will be jeopardized if it is required to suspend its vaccina-

tion requirement, Defendant identifies no public benefit

from the continued enforcement of the Statute against

[the plaintiff]. For these reasons, the balance of equities

and the public interest also weigh in favor of an

injunction.

102

Although the State of Florida promised to appeal this ruling,

103

the

Norwegian Cruise Line victory raises the chances that the NFL may

quire this type of documentation, including COVID-19 test results, other

vaccine documentation, and other types of medical information. Under

Section 381.00316, the only documentation businesses cannot demand is

COVID-19 vaccine documentation. Accordingly, the statute is a content-

based restriction because it singles out documentation regarding a partic-

ular subject matter (certification of “COVID-19 vaccination or post-infec-

tion recovery”) and subjects it to restrictions (businesses may not require

them for entry or services) that do not apply to documents regarding

other topics.

Id. at 17-18. As to the dormant Commerce Clause claim, the court confirmed that

the

dormant Commerce Clause not only limits the authority of states to enact

laws that affirmatively discriminate against out-of-state actors, but it also

limits the authority of states to enact laws that indirectly affect—that sub-

stantially burden—interstate commerce.

Id. at 39. Finally, the court noted that it

need not address the Preemption claim at this stage. Nevertheless, the

Court notes that Plaintiffs have raised compelling arguments as to why

the Statute is conflict preempted by the CDC’s guidelines. See Geier v. Am.

Honda Motor Co., 529 U.S. 861 (2000). The Court will address these argu-

ments at a later stage of the proceeding.

Id.

101. See Norwegian Cruise Line Holdings v. Rivkees, at 55-58 (citing merits of

plaintiff’s commerce clause claim).

102. See id. at 58-59 (holding injunction is proper due to lack of public

benefit).

103. See Morgan Hines, Judge Sides With Norwegian, Allows Cruise Lines To Ask

For COVID-19 Vaccine Proof In Florida—For Now, USA

ODAY

(

Aug. 10, 2021), https:/

/www.usatoday.com/story/travel/cruises/2021/08/09/norwegian-cruise-florida-

covid-vaccine-passport-ban-judge-rules/5535291001/ [https://perma.cc/46LV-

879K] (noting judgement for Norwegian). It appears this will be appealed because

According to a statement from Gov. DeSantis’ office, provided by press

secretary Christina Pushaw, the state will appeal as they “disagree with the

judge’s legal reasoning. . ..A prohibition on vaccine passports does not

even implicate, let alone violate, anyone’s speech rights, and it furthers

the substantial, local interest of preventing discrimination among custom-

ers based on private health information . . . .”

Id.

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not

have been prevented from establishing a Covid-19 vaccination

mandate in

every

state where NFL games are played.

B. Enforcement Problems

Indiana state law does not prohibit vaccine mandates, but as

discussed above, eight students sued when Indiana University an-

nounced a coronavirus vaccine requirement. Relief was denied,

Judge Leichty explained, because “the balance of harms and the

public interest favor Indiana University and the determination that

it has reasonably determined the best course of action for the

health of its academic community this upcoming fall semester

. . . .”

104

The president of neighboring Purdue University, however,

said he would not institute a vaccine mandate, believing that it is up

to each individual to decide whether to be vaccinated, and in any

event, a mandate would be impractical and difficult to enforce.

105

Enforcement problems include deciding what sort of docu-

mentation would be required—e.g., a CDC vaccine card indicating

a Covid-19 shot or shots—and dealing with fake documentation by

vaccine hesitant (or anti-vax) fans.

106

Canadian border agents are

aware that fake cards are available for purchase on-line and are be-

ing used to enter Canada, but are trained to discern authenticity—

of course, agents have at their disposal the threat of criminal law

104. See Klaassen v. Trustees of Ind. Univ., Opinion and Order, Cause No.

1:21-CV-238 DRL, (July 18, 2021) (U.S. Dist. Ct., N. D. Ind.) at 96 (requesting to

enjoin the mandate pending appeal denied), See Klaassen v. Trustees of Indiana

University, Case No. 21-2326, (Aug. 2, 2021) (U.S. Ct. App., 7th Cir.). See generally

Nick Niedzwiadek, Federal Judge Rejects Bid To Block Indiana University Vaccine Man-

date,

OLITICO

(July 19, 2021), https://www.politico.com/news/2021/07/19/indi-

ana-university-vaccine-mandate-lawsuit-500117 [https://perma.cc/TC64-NEGJ]

(stating judge rejected student’s arguments that Indiana University could not re-

quire students and employees to be vaccinated).

105. See MSNBC, Purdue University President Reacts To Judge’s Ruling To Uphold

Nearby Indiana University’s Vaccine Mandate (July 19, 2021), https://www.msn.com/

en-us/news/other/purdue-university-president-reacts-to-judges-ruling-to-uphold-

nearby-indiana-universitys-vaccine-mandate/vi-AAMjX4J [https://perma.cc/2GSL-

TLHC] (describing Purdue University President defending his decision to not re-

quire students to be fully vaccinated against Covid-19). Arizona Governor Doug

Ducey signed an order on June 15, 2021, mandating that universities cannot re-

quire Covid-19 vaccinations, and he also emphasized that despite his encourage-

ment to get the vaccine, “it is a choice and we need to keep it that way.” See Arizona

executive order bans universities from requiring students to receive COVID-19 vaccine,

ABC15 A

RIZ

(June 15, 2021), https://www.abc15.com/news/state/gov-ducey-is-

sues-order-for-college-students-to-not-be-mandated-to-take-covid-19-vaccine

[https://perma.cc/JX5M-C7GE] (quoting Gov. Ducey).

106. See MacDonald, supra note 1 (discussing difficulties in screening for

proof of vaccinations at NFL games).

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sanctions for providing false information to enter Canada.

107

The

NFL would not have had that threat of prosecution, but ticket per-

sonnel could have been trained to identify the characteristics of

fakes. Moreover, the likely honesty of most fans would not make

game attendance as big a risk of a spreader event as simply allowing

the unvaccinated to attend games.

There are middle positions, popular in many entertainment ve-

nues. In March 2021, the Miami Heat, for example, perhaps to in-

centivize vaccination, set aside two sections of its arena for the

vaccinated, who could sit closer together—the unvaccinated were

required to socially distance.

108

Madison Square Garden in New

York started, in the spring of 2021, requiring vaccination

a recent

negative PCR or antigen test.

109

One can easily see the compromise

made and its attractiveness to those who are vaccine hesitant, but

there is always a risk that the person with the negative test has been

infected

after

the test. In addition,

[s]ophisticated, high-tech options are rolling out. The

Commons Project, for example, has developed the Com-

monPass—an app that shows you were vaccinated or your

negative test result. Some airlines have launched trials of

the platform. New York state has debuted the Excelsior

Pass, which provides the same information. “Think of it as

a mobile airline boarding pass,” the state’s website said.

110

As earlier mentioned, the idea of a vaccine passport raises ethical

and legal concerns. While requiring some form of proof of a Covid-

19 vaccination to enter a stadium does not seem problematic,

111

the

more fraud-proof the vaccine identification system (using digital or

electronic elements) is, the more the need for privacy and data pro-

107. See Noor Ibrahim, Are Fake Vaccine Cards Being Used To Enter Canada?,

LOBAL

EWS

(July 26, 2021), available at https://globalnews.ca/news/8054332/

fake-covid-vaccine-cards-enter-canada/. [https://perma.cc/48E2-8RSL] (“In the

province of Manitoba, ‘inoculated residents receive an immunization card with a

scannable QR [Quick Response] code.’”).

108. See Corky Siemaszko, Miami Heat Redefines VIP in Covid Era: Vaccinated

Important People, NBC

EWS

(March 25, 2021), https://www.nbcnews.com/news/

us-news/miami-heat-redefines-vip-covid-era-vaccinated-important-people-

n1262072. [https://perma.cc/YT9X-82QE] (allowing vaccinated patrons to follow

less strict protocols).

109. See Nguyen, supra note at 97 (“New York’s Madison Square Garden is

requiring proof of either vaccination or a negative PCR or antigen test taken

within a specific time frame.”).

110. See id. (equating recommended vaccine passport to the wallet app in

phones).

111. See id. (stating legal experts say businesses have the right to deny en-

trance to those who can’t show proof).

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tection, and the greater the risk for discrimination and stigmatiza-

tion. Balancing these considerations favors the simpler solution of a

CDC vaccination card.

C. Exemption Issues

“I don’t think going to a basketball game is a fundamental right.”

112

The issue of exemptions from vaccine mandates is complex be-

cause this area of law is not only state-specific but unstable and

evolving.

113

There is a major question concerning whether a busi-

ness like the NFL (unlike a public school

114

or an employer

115

)

needs to provide for exemptions for customers, whether religious

or medical, to a vaccine mandate.

Religious Exemptions

Religious exemptions are an especially complex area of law—

on the one hand, no court should be in the business of deciding

what a genuine religious objection looks like;

116

on the other hand,

the current U.S. Supreme Court seems especially interested in iden-

tifying and eliminating burdens on religious freedom.

117

While

forty-five states and the District of Columbia recognize religious ex-

emptions from vaccination, a compelling argument can be made to

112. See id. (quoting University of Washington law professor Patricia Kuszler).

113. See Jennifer Nessel, Religious Vaccine Exemption Bills Spark Debate Across The

United States,

HARM

. T

IMES

(Feb. 25, 2020), https://www.pharmacytimes.com/

view/religious-vaccine-exemption-bills-spark-debate-across-the-united-states

[https://perma.cc/558L-THS8] (discussing legislative efforts in Illinois, New

Jersey, and Connecticut to remove religious exemptions from vaccine mandates).

114. See Religious & Medical Exemptions from COVID-19 Vaccine Mandate (June

16, 2021), https://www.tc.columbia.edu/articles/2021/june/religious—medical-

exemptions-from-covid-19-vaccine-mandate/ [https://perma.cc/WG56-N28V]

(finding universities with Covid-19 vaccine mandates are typically allowing relig-

ious and medical exemptions).

115. See generally Poonam Lakhani, The Covid-19 Vaccine is Here: What About

Religious and Medical Exemptions in the Workplace?,

RINZ

L. F

IRM

(Dec. 18,

2020), https://www.prinz-lawfirm.com/our-blog/2020/december/the-covid-19-

vaccine-is-here-a-look-at-religious/ [https://perma.cc/J32C-W6CV] (illuminating

obligations of employers with respect to religious and medical exemptions).

116. See Fowler v. R.I., 345 U.S. 67, 70 (1953) (“[I]t is no business of courts to

say that what is a religious practice or activity for one group is not religion under

the protection of the First Amendment.”).

117. See Fulton et al. v. Phila., 593 U.S. (2021) (“City’s action, ending contract

with Catholic Social Services over service to LGBT people, burdened that agency’s

religious liberty.”). See generally Carrie Severino, Opinion: No Doubt About It:: We

Have A Pro-Religious Freedom Supreme Court,

ASH

. E

XAMINER

(July 27, 2021), availa-

ble at https://www.washingtonexaminer.com/opinion/op-eds/no-doubt-about-it-

we-have-a-pro-religious-freedom-supreme-court [https://perma.cc/USB6-KEJA]

(elaborating on possible future effects of Fulton decision).

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eliminate religious exemptions to compulsory vaccination stat-

utes.

118

First, what is considered a genuine religious belief in some

states is not in others—veganism is not a religious belief in Califor-

nia,

119

but it is in Ohio.

120

Second, while the “vast majority of states

do not allow. . .philosophical exemptions,”

121

some do—Penn-

sylvania, for example, under the heading “Religious Exemption”

(from immunization), allows objections based “on religious

grounds or on the basis of strong moral or ethical conviction simi-

lar to religious belief.”

122

Finally, the experiences with immuniza-

tions of children indicate that “parents are using religious

exemptions without really having a religious objection to

vaccines.”

123

Researchers believe some parents use states’ religious ex-

emptions even though they don’t necessarily have a relig-

ious objection, said Peter Hotez, a vaccination proponent

and dean of the National School of Tropical Medicine at

the Baylor College of Medicine in Houston. “As the anti-

vaccine movement grows in strength and power, they

could use the religious exemption loophole,” he said.

124

In short, a policy allowing religious exemptions was probably too

complex for the NFL to consider. It would be difficult for stadium

personnel to have made judgments as to genuine religious or philo-

sophical objections to a Covid-19 vaccine mandate. Although pro-

118. See Emma Tomsick, The Public Health Demand for Revoking Non-Medical Ex-

emptions to Compulsory Vaccination Statutes, 34 J.L. & H

EALTH

129, 137, 151-156

(2020) (“In cases where religious beliefs are juxtaposed against the public welfare

. . . the public welfare takes precedence.”).

119. See Friedman v. Southern Cal. Permanente Med. Group, 102 Cal. App.

4th 39 (2002) (finding veganism fails to qualify as religious belief given facts

presented).

120. See Chenzira v. Cin. Child. Hosp. Med. Cent., Case No. 1:11-CV-00917

(U.S. Dist. Ct, S.D. Ohio) (Dec. 27, 2012) (finding it “plausible that Plaintiff could

subscribe to veganism with a sincerity equating that of traditional religious views”).

121. See Tomsick, supra note 118, at 140 (highlighting states that “offer philo-

sophical, or personal belief exemptions, employ a variety of procedures for parents

to obtain exemption. Exemption rates are significantly [lower] in the states where

the exemption is more challenging to obtain. Some states require minimal ef-

fort—a parent may simply sign a form to exempt the child. In these states, exemp-

tion rates are high”).

122. See PA CODE § 23.84 (identifying religious exemptions).

123. See Tomsick, supra note 118, at 138 (“Religious exemptions are becoming

a loophole”).

124. See Sarah Pulliam Bailey, Some Anti-Vaccination Parents Cite Religious Exemp-

tions. Measles outbreaks Could Change That,

ASH

. P

OST

(Feb. 21, 2019), https://

www.washingtonpost.com/religion/2019/02/21/some-anti-vaccination-parents-

cite-religious-exemptions-measles-outbreaks-could-change-that/ [https://

perma.cc/8JBW-JDQ9] (quoting Peter Hotez).

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viding for religious exemptions made the Indiana University

mandate more palatable to courts,

125

it seems obvious that the right

to attend an NFL game is not as compelling as a right to attend a

public university.

Medical Exemptions

“Even people who are medically exempt from vaccination would not

have a case against a business that kept them out. . . .”

126

Medical exemptions are also important to consider. While

most of those with allergies can safely get the Covid-19 vaccine,

there are exceptions: those with anaphylaxis (severe allergic reac-

tion) to components of a particular vaccine (e.g., Polyethylene Gly-

col in Pfizer or Moderna, or Polysorbate in J&J) should find an

alternative vaccine, and those with autoimmune disease or who

have anaphylaxis “to any vaccine or injectable (intramuscular or in-

travenous) medication should consult with their health provider to

assess risk prior to receiving the COVID-19 vaccine.”

127

A history of

Guillain-Barr

e syndrome can also provide a basis for a medical ex-

ception due to increased risk of vaccination.

128

Concerns include

myocarditis and pericarditis, discussed above,

129

with respect to the

125. For a discussion of the 7th Circuit decision in Klaassen, see supra notes

93-97 and accompanying text.

126. See Nguyen, supra note 97 (stating “inappropriate medical exemptions

could hasten the spread of the virus and threaten public health.”’). Professor Mi-

cal Raz at the University of Rochester believes that while most people

should be able to wear a mask, there likely are a few legitimate reasons for

exemptions. Perhaps someone has a facial deformity that makes it diffi-

cult or impossible to wear a mask. In other cases, a person may have sen-

sory or developmental disabilities, such as forms of autism. At the same

time, there may be options. A person who’s unable to wear a typical mask

may be able to wear a different mask or face shield in most situation. . . .

But if an exemption is granted . . . patients whose conditions are exacer-

bated by wearing a mask should evaluate risks they face as well as risks

they may pose to others.

See Peter Iglinski, In Time Of Masking Mandates, How To Evaluate Exemptions?,

EW-

SCENTER

(

July 24, 2020), https://www.rochester.edu/newscenter/in-time-of-mask-

ing-mandates-how-to-evaluate-exemptions-446442/. [https://perma.cc/UJ44-

6T6M] (giving more insight why some may be exempted from wearing a mask).

127. See Information for Special Populations and the COVID-19 Vaccine,

ALE

EALTH

(June 19, 2021), https://yalehealth.yale.edu/yale-covid-19-vaccine-pro-

gram/information-special-populations-and-covid-19-vaccine [https://perma.cc/

7SUL-GZ9F] (highlighting allergies which would trigger exemption or require

weighing options regarding which vaccine).

128. See Lakhani, supra note 115 (listing medical exemptions to vaccine

mandates).

129. See Berkely Lovelace Jr., CDC Safety Group Says There’s A Likely Link Between

Rare Heart Inflammation In Young People After Covid Shot, Health and Science, MSNBC

(June 23, 2021), https://www.cnbc.com/2021/06/23/cdc-reports-more-than-1200-

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Moderna and Pfizer vaccines, and blood clots, with respect to the

J&J vaccine.

130

Finally, the Indiana University vaccine mandate in-

cluded, in its medical exemption (or deferral), “active pregnancy or

breastfeeding, receiving a hematopoietic or solid organ transplant,

receiving treatment with Rituximab within the past 3-6 month, or

COVID-specific antibodies in the past 90 days.”

131

Most of the conversation around medical exemptions concerns

employers, thus, there is a question whether the NFL, if it had a

vaccination mandate for fans, would even have to recognize medi-

cal exemptions. In the UK, the Premier League decided to require

vaccination of all fans attending games, and only “those with medi-

cal exemption will be permitted to attend games without a vaccine

‘passport’.”

132

The NFL could have followed the lead of the Pre-

mier League, as there is a lot of good will surrounding respect for

those who cannot safely get a vaccine. If the NFL had chosen not to

recognize medical exemptions, however—and even though some

fans could challenge that decision—there is no obvious legal obli-

gation to do so.

VI. CONCLUSION

“Over the Noise, One Fact Rings True: Vaccine Mandates Have Saved

Lives.”

133

The Indiana University policy isn’t forced vaccination. The students

have options—taking the vaccine, applying for a religious exemption, apply-

cases-of-rare-heart-inflammation-after-covid-vaccine-shots.html [https://perma.cc/

3WD7-APJP] (citing rare but serious side effects of the Covid jab).

130. See Paola Rosa-Aquino, What We Know About the Johnson & Johnson Pause

and Vaccine Hesitancy, Intelligencer,

N.Y M

., (Apr. 15, 2021), https://nymag.com/

intelligencer/2021/04/what-we-know-about-the-j-and-j-pause-and-vaccine-hesi-

tancy.html [https://perma.cc/NQ9J-R7G9] (listing rare vaccine side effects which

have accompanied specific vaccines).

131. See Klaassen, supra note 82, at 12 (listing accepted medical exemptions).

132. See Jack Lusby, Premier League To Require COVID-19 Vaccine For Players, Staff

AND Fans,

HIS IS

NFIELD

(July 23, 2021), https://www.thisisanfield.com/2021/

07/premier-league-to-require-covid-19-vaccine-for-players-staff-and-fans/ [https://

perma.cc/BVP8-G5XN] (stating vaccination requirements related to Premier

League staff and fans).

133. See David Leonhardt & Ian Prasad Philbrick, supra note 44.

[M]andates are not 100 percent effective. Some people will receive ex-

emptions . . . [and a] small number may forge vaccine records. And some

vaccinated people will still contract . . . Covid . . . . But . . . mandates can

play a major role in . . . saving lives. . . . Supporters of mandates have

[argued] that society has a duty to protect its citizens . . . put at risk by

people who voluntarily refuse vaccines.

Id.

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ing for a medical exemption, applying for a medical deferral, taking a semes-

ter off, or attending another university.

134

I think that the NFL showed a lack of leadership and concern

by deciding against a vaccine mandate for stadium attendance, es-

pecially as they returned to full capacity. Perhaps the league feared

a loss of fans due to unpopular decision to require vaccines for ad-

mission into stadiums. Yet, given that so many government agen-

cies, employers, and service businesses have required vaccination,

the challenges of enforcement and exemptions would not have

been so great—there were eventually well-worn paths for the NFL

to follow. In the end, it is a question of how to balance public

health with the desire for popularity and profits. In my view, the

NFL should have erred on the side of caution—too many people

have died from Covid-19.

134. See Klaassen et al. v. Trustees of Ind. Univ., Cause No. 1:21-CV-238 DRL

(N.D. Ind.) (July 18, 2021), at 97 (detailing alternatives to this policy, however, to

enroll at university of Indiana even online you must be vaccinated).