Mile Seven Excerpt for mobile | The Law of Running

Mile Seven:

Cancellations, contracts, coronavirus, and gyms

Excerpt from The Law of Running: A Runner's Guide to Legal Rights

Fine print in contracts is a fact of life, including for runners. We are parties to a lot of contracts regardless of whether we read or understand them. With the sign of a pen or a press of a thumb, we become legally bound to a lot of legalese in the gym-membership agreements we sign, the equipment warnings we see, and the race-registration forms we barely scan.

Only when the unexpected happens, such as when we get injured on a gym’s treadmill or at a race, might we scrutinize the fine print we wish we had read. Or, when a race we signed up for is postponed or canceled, we naturally wonder if we can get our money back under the contract.

Contract law was on the minds of countless runners in the spring of 2020 when a coronavirus resulted in the COVID-19 pandemic. The global health crisis caused us to shelter in place. Marquee running events were altered, postponed, and canceled in numbers our sport had never seen before.

The first major event affected was the Tokyo Marathon, which was run on March 1 but only for elite runners and wheelchair participants. Other runners were given guaranteed entry to the 2021 race as long as they paid another entry fee. There were no refunds. That much was made clear by the fine print entrants agreed to when registering for the race.

The next week, the Los Angeles Marathon was held on schedule and as designed, although runners were advised not to shake hands. Just two days later came word the New York City Half-Marathon would be canceled.

I should know. I was registered to run it.

Then on Friday the 13th of March came unprecedented news. The 124th running of Boston Marathon would be postponed for the first time ever and run on the second Monday in September instead of the third Monday in April.

I should know. I was registered to run that, too.

Other race postponements and cancellations in the spring of 2020 ranged from the London and Paris Marathons in April to the little St. Patrick’s Day 5K that runs a block from my house. Track-and-field events were affected as well. The USATF Masters Indoor Championships and NCAA Outdoor Track & Field Championships were among those canceled.

Runners hunkered down, or at least we avoided large gatherings and ran alone or in small groups, but six feet apart. As this book was published, we were being good-natured about it as we recognized much more than running was at stake. But still, the question was arising: Can we get our money back?

Under a strict reading and application of contract law, the answer was and is no. That being said, in the spirit of our sport, many races tried to help as much as they could during the unprecedented pandemic.

The New York City Half-Marathon followed the Tokyo Marathon’s lead in giving guaranteed entry to the 2021 race as long runners paid the additional entry fee. Unlike the Tokyo race, the New York race also offered a second option: refunds. (I chose the first option. The race is notoriously difficult to get into.)

As for the Boston Marathon, I had no interest in a refund, regardless of whether one would have been offered. Come hamstring injury or high water, I intend to run it. The Boston Athletic Association’s ability and willingness to reschedule a race that runs through eight municipalities was appreciated.

For destination races like those in Tokyo, New York, and Boston, travel and hotel fees are the greater expense. During the March 2020 pandemic, airlines and hotels also were being accommodating even as they and their employees faced dire futures.

Yes, I lost most of my money for the Airbnb I never used in New York. But I canceled my reservation only four hours before I was due to arrive, so I could not and did not complain. Marathon Tours, through which I booked my Boston lodging, was accommodating and automatically canceled my reservation with no expense to me.

As for airfare, I took a gamble and lost on my dirt-cheap nonrefundable fare to New York. JetBlue, though, waived its $150 change fee and let me rebook my Boston trip for nearly $100 less than my original ticket.

For me, the fine print worked out fine. My economic losses were nothing compared with what folks in the service industry were facing. Haggling over the legal nuances of contract law seemed immaterial.

Running, though, was being seen as vital to health and well-being, even in the largest cities where “shelter in place” orders took effect and residents were advised to stay away from each other to slow the spread of the virus.

In a March 16, 2020 order from the San Francisco Department of Health, “Essential Activities” included running, walking, and biking, “provided the individuals comply with Social Distancing Requirements.”

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The spate of race postponements and cancellations in the spring of 2020 were highly unusual and in fact unprecedented. Never before had our sport seen such a thing. Never had sports in general seen such a thing. The NBA, NHL, and Major League Baseball halted or delayed their seasons. The future of college and high school athletics, including track and field, was unclear.

Of course, weather-related postponements and cancellations happen in sports ranging from running to rugby. Before the 2020 coronavirus chaos, the highest-profile cancellation was the 2012 New York City Marathon, which was canceled two days before race day as the city regrouped after Hurricane Sandy.

A road race seemed inconsequential when compared with the plight of New Yorkers who had lost their homes, so race organizers called off the event. New York Road Runners, which operates the marathon with a competitive entry-by-lottery system, gave runners the choice of a full refund or entry in a future race, as long as they paid an additional entry fee.

The accommodations were not contractually required. Based on the fine print in the race-registration forms, the NYRR did not have to do what it did.

“We wanted to be as generous as possible with runners,” the group’s president, Mary Wittenberg, told the New York Daily News. “Never before have we done refunds (but) in this case it was an extraordinary situation.”

And then, another extraordinary situation caused the NYRR to provide similar accommodations for the 2020 New York City Half-Marathon.

The 2012 New York City Marathon’s cancellation was unusual because it came after a weather event. Most often, cancellations come before weather conditions make it too dangerous to run.

In 2013, snow and ice caused the St. Jude Memphis Marathon and Dallas Marathon to be canceled two days before the races. While the Memphis Marathon offered a refund or choice to enter another race, the Dallas Marathon offered no refund and no choice of entering another event.

By retaining the entry fees even while not holding a race, the event organizers were acting consistently with the relevant contractual language.

“There is no other race for us. This is what we do,” the Dallas Marathon’s president, Patrick Byerly, told Runner’s World at the time.

Why? As with any race canceled on short notice, the race organizers already had paid expenses ranging from water cups to the facility rental fee for the expo. In addition, the Dallas Marathon donates its net proceeds to the Texas Scottish Rite Hospital for Children.

“If we had refunded everyone’s money, we would have been out of business, and the hospital would have been majorly impacted as well,” Byerly told Runner’s World.

The race did provide priority registration for the next year’s race, at a discounted price. However, as Runner’s World accurately explained: “The Dallas Marathon was under no legal obligation to refund runners’ entry fees. Each participant signed a waiver saying that he or she understood the race did not offer refunds in the event of a cancellation.”

In 2018, the Big Sur Marathon Foundation canceled its Monterey Bay Half-Marathon with less than 24 hours’ notice because of poor air quality attributed to smoke from fires 100 miles away. Registered participants did not get refunds but they could defer the entry to a future race.

The race took pains to explain the policy.

“We still have to pay about 90% of expected race expenses including your shirt, medal, custom bib, data entry, and race infrastructure (tents, tables, fencing, security, trucks, etc.),” race organizers explained. They also pointed out the Big Sur Marathon Foundation was a nonprofit organization and runners who canceled their entry could consider it a charitable donation.

Cancellations also occur during races, typically because heat and humidity make it too dangerous to continue the event. Events canceled mid-race include the Chicago Marathon in October 2007 and the Green Bay Marathon and Half-Marathon in 2012.

I ran the Green Bay, Wisconsin race that year and got word of the cancellation at mile 18. I trudged forward anyway to complete 26.2 miles and crossed under a clock that had gone dark. Still, I was thankful for kind residents who handed out water bottles and doused us with garden hoses.

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For race directors, it is a good idea to think ahead to the possibility of a race cancellation, not only to protect the race’s legal interests but to manage negative feelings in the court of public opinion.

The website RaceDirectorsHQ.com urges directors to anticipate how their written cancellation policies would be perceived and to be generous when the can.

As the online guidance for race directors explains, there might be good financial and legal reasons to include a written no-refund policy in the race-registration contract. But if and when a cancellation happens, the website advises race directors to “be gracious” if possible.

Still, having a no-refund policy is legally prudent. A generous written refund policy can result in a public-relations disaster and potential legal liability if the race discovers it does not have the money to cover the refunds.

RaceDirectorsHQ wisely urges race organizers to consider buying race-cancellation insurance, which offers legal protection if there are weather-related cancellations.

Race entrants also can protect themselves with insurance. The Big Sur Marathon Foundation is among race organizers that urge participants to enroll in the “Booking Protect” program through www.active.com.

The Booking Project is an insurance policy that protects runners who cannot run a race because of injury or other circumstances in runners’ lives. However, the Booking Protect does not compensate runners when the race is canceled.

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Sometimes races are canceled for reasons that have nothing to do with a pandemic or the weather. In those situations, races can and should expect scrutiny from runners who might second-guess the decisions and seek reasons why the races are not upholding their end of the bargain.

In recent years, marathons in Minneapolis and Boulder were canceled on short notice because of problems getting permits from the city. Cancellations caused by bad planning are certain to raise ire with runners.

As the RaceDirectorsHQ website explains, race participants often are sympathetic to a list of reasons why races might be canceled, but “not receiving your permits is not one of them.”

In such cases, a failure to refund entry fees could subject the races to valid claims of breach of contract. Most basically, when a consumer such as a runner fails to receive something of value that has been paid for, the law treats that as a failure to satisfy a legally enforceable agreement.

In that situation, a no-refund clause in a race agreement—even one that says a race can be canceled for “any reason”—might have no legal effect because implicit in the agreement is the race organizer’s obligation to take the basic steps necessary to hold a race in the first place.

Taking the money and not running the race can be legally suspect. States have laws that sometimes provide consumers with the legal grounds to sue races for consumer fraud or unfair trade practices.

In 2017, after the Vancouver USA Marathon was canceled in Washington state because of low registration numbers, a disgruntled runner sued the organizer, which, according to the federal lawsuit, would not issue full refunds because the organization had already spent the money.

The runner sought class-action status for the lawsuit and tried to litigate the case on behalf of all affected runners. The lawsuit alleged the race engaged in unlawful trade practices.

Several months after filing the lawsuit, the runner voluntarily dismissed the case and told the Columbian newspaper the race organizer’s bankruptcy was the reason. The race organizer said the runner received a full refund after the lawsuit was filed.

Runners are understandably frustrated when they have paid to travel to races that are called off for those reasons. Technically, there might be valid legal grounds to sue the race to recover the costs, but realistically the cost of hiring a lawyer to do so would far surpass the cost of airfare and hotel.

Besides, if the race lacks resources to make the basic event arrangements, it likely lacks resources to pay your travel costs. That being said, in such situations, it does not hurt to ask the race for financial help.

Dave McGillivray, the longtime race director of the Boston Marathon and president of the race-management company DMSE Sports, Inc., wrote a column in Runner’s World in 2012 explaining he once was involved with a decision to cancel a race because of low registration and travel costs were compensated on a “on a case-by-case basis.”

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Confusion about the charitable nature of some race organizations also has drawn scrutiny. In 2015, Team Ortho Foundation, which sponsored races in Minnesota, Illinois, and Texas, was criticized for donating less than 2% of the money it took in to charities even though its mission was to benefit orthopedic research.

Former employees of Team Ortho told Runner’s World magazine and a Twin Cities television they quit because of the financial issues.

For-profit race organizers also have sought to capitalize on the popularity of a sport that largely has been driven by nonprofit races and organizations that raise money on behalf of charities.

In a 2013 article for Esquire magazine titled “How Big Business Wrecked the Marathon,” Jon Marcus described the “new behemoth of the industry” as Competitor Group, the for-profit entity that operates the Rock ’n’ Roll races, Muddy Buddy Series, and Competitor and Women’s Running magazines. (In 2017, Competitor was acquired by a Chinese corporation.)

In 2014, Competitor Group drew controversy when a bike escort who volunteered her time for the St. Louis Rock ’n’ Roll Marathon/Half Marathon sued the company in federal court alleging it violated the Fair Labor Standards Act for not paying a minimum wage. The lawsuit sought to litigate claims on behalf of other volunteers on a class-action basis.

Initially, a judge let the case go forward, rejecting the race’s claim that it was an “amusement or recreational establishment” and siding with the volunteer who likened the race to a “for-profit gym or yoga class.”

A year later, however, the judge dismissed the case for failure to meet required deadlines. Therefore, the “employee” status of people who volunteer for-profit races is somewhat in flux.

In 2016, the New York City Marathon’s lottery-like system for choosing runners made the New York Road Runners organization a defendant in federal court.

At the time, the marathon retained $11 of the registration fee of runners who wanted to run the race but were not selected. Two runners in that position sued the NYRR alleging the $11 fee violated the New York Constitution, which bans any “lottery or sale of lottery tickets” unless sanctioned by the state.

In a September 2016 settlement, the NYRR agreed to provide $2.1 million in credits to affected runners, to donate to the New York City Parks Foundation, and to improve on the race’s fine print.

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