Covid-19 and Football: The Legal Implications

The impact of Covid-19 on society is now well documented and affects the lives of people around the world. Governments are trying to find solutions and part of those solutions requires decision making that limits individual freedoms. Social distancing and lock-downs are now part of our daily routines and inevitably our life will have to adapt to such routines and schedules.

Given that we do not possess an effective vaccine at the moment, the impact on Covid-19 will continue to affect decision making everywhere in the world. This is true in the case of football, where self regulation is finding itself in uncharted territory. Given the complexity and multi-faceted nature of the contractual relationships in football, the current proposals for the future of national leagues (as well as European and world events) will, highly likely, affect such relationships and they will give rise to several legal implications.

In the last two months, we advised a number of different stakeholders in Scotland, Belgium, Holland and Germany, on issues that affect the contractual relationships between the different parties in football. Many questions arise as to what the implications would be, if leagues are cancelled or resumed and how the rights of players, if any, would be affected. An analysis of such issues takes the form of a 'guessing game', where no final decision has been taken as to the future of national leagues (unless otherwise so applied). 

FIFA has already published guidelines where it encourages the resumption of national leagues and it proposes the short extension of players' contracts and flexibility in moving the summer transfer window at the end of the current season (whenever such end may be): https://www.fifa.com/who-we-are/news/fifa-guidelines-to-address-legal-consequences-of-covid-19 In theory, such proposals have as an aim to ensure the continuation of contractual stability and safeguard the integrity of competitions, where national leagues are concerned. On a closer look, however, it creates several complications for the stakeholders in this business. Let us analyse such complications:

1.      Firstly, it is important to note that national federations enjoy autonomy and freedom in their decision making, as long as such decision making is within the overall spirit of the regulatory frameworks of FIFA and UEFA. That said, there is no potential legal basis upon which national federations may be estopped from cancelling the current football season. 

2.      Some national federations (see France, Belgium, Holland and quite possibly Scotland) have decided to cancel the current season, mainly on a proportionate consideration of important risk management strategies, that led to a conclusion that resumption of football games, may place players and the public in a dangerous predicament, with unforeseen health and safety consequences. In other words, those leagues who have decided to cancel their current season, focused on the argument that the current risk with Covid-19 is simply too great to be ignored and the safety of players is of paramount importance. One may argue here that by doing so, national leagues may experiment with Pandora's box, as the legal complications will be too many (broadcasters and sponsors suing for lack of performance, shirt deals may be ignored, clubs claiming lost revenue and fans asking for refunds where season tickets are concerned - although with prudent negotiation and mutual understanding agreements can be achieved). 

3.      Cancellation of a national league, may also trigger legal action before national courts (note that current football regulations prohibit the use of national courts and encourage the use of sport arbitral tribunals, via the application of disciplinary law). It is likely that such action may be based on unfair prejudice petitions, simply because of the unique structural considerations of the national football league, where, in essence, all premier league clubs are the owners of the premier league, and, they are, therefore, its shareholders. In England, for example, clubs may be able to use the Companies Act 2006 and petition to the court on the grounds of unfair prejudice. Such petitions (they will consider both contract law and company law) are, by nature, quite complicated and uncertain, but if clubs are successful (in blocking a proposal for relegation, for example), such success may create several complications for the final standing of other clubs. Hence, many national leagues around Europe have decided to cancel their season, by waving relegation, promoting clubs from the lower league and ensuring that the new season starts with more clubs. 

4.      Should leagues decide to resume their football season, it is likely that such events will occur behind closed doors, or, in other words, without spectators. Still, many players have expressed a justifiable concern of playing football under the current conditions. Forcing players to play football (under the present uncertain conditions), may be one step too far and it will, highly likely, trigger a series of claims, particularly where players have contracted the virus, as a result of being forced to play football against their wishes (with contracts of insurance under dispute too). 

5.      Resuming the current football season would possibly create an unfair (and uncertain) competition, as it will be too difficult to contain the virus (even with testing) and this means that several games would have to be abandoned (https://www.theguardian.com/football/2020/may/09/bundesliga-restart-blow-dynamo-dresden-team-quarantined-covid-19), placing everyone, therefore, in the same situation applied before the actual resumption of the league and quite possibly, making it even worse.

6.      Resuming the current football season will also create a problem for those clubs who are unable to negotiate short term extensions to players' contracts that expiry on 31 May or 30 June. Such players will automatically become 'free agents' (on the legal basis of the Bosman ruling - Case C-415/93 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61993CJ0415&from=EN) and they will have the right to refuse to extend (even on a short-term basis) their current contract.

Force Majeure Clauses

?This is a civil law concept ('superior force' in French) which releases parties from their contractual obligations (or alters the performance described in such obligations), where the performance of such obligations becomes impossible or illegal. In English law, such clauses derive from the law of contract and have no routes in common law, whereas in other legal systems, a force majeure clause may derive from actual legislation and/or a statutory instrument. In Switzerland for example, where the majority of sport governing bodies are domiciled, Article 119 of the Swiss Code of Obligations provides that "..an obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor.." Similarly, Swiss jurisprudence has also created the principle of Rebus Sic Stantibus where a party is allowed to be released from its obligations, because the change in circumstances (because of unforeseen events) has also radically changed the terms of the initial agreement. This means that, on the principle of good faith, performance of such obligations is no longer possible.

English contract law, in comparison, does not include a specific definition for force majeure clauses and this may, sometimes, lead to different interpretations. Such interpretations very much depend on the language which accompanies such clauses and in relation to events that may make the performance of a contract impossible. Covid-19 may be classified as an event which covers a force majeure situation, however, such classification would very much depend on the language used in the relevant contracts (i.e. epidemic). Please note that if the performance of the contract has become more expensive or there is simply a delay (for its completion), such circumstances will not discharge the parties from their obligations.

Further, the Court of Arbitration for Sport (CAS) and its jurisprudence are not agnostic to sporting disputes that relate to force majeure submissions. Caution must be paid, however, to the narrow approach that many CAS panels have applied in the interpretation of such clauses. For example (in line with the above paragraph), in the case of CAS 2015/A/3920 Fédération Royale Marocaine de Football v. Confédération Africaine de Football, which was an arbitration that arose out of events that related to Ebola, the CAS Panel held that this was not a force majeure event, mainly because performance of the contract was delayed and such delay did not make the performance of the contract impossible (the Tournament could have been organised at a later stage). This is obviously a decision that it is based on fact-specific evidence and evidence produced by medical experts. It is not wise to predict that the same result may be arrived at, in a hypothetical submission that relates to Covid-19.

In another case decided by CAS, the Panel held that force majeure clauses need to be interpreted narrowly as such clauses are the exception to the binding nature of obligations, not the rule (see CAS 2006/A/1110 PAOK FC v UEFA). 

In contrast, and despite such narrow interpretation, CAS has accepted in the past that force majeure clauses are internationally recognised and accepted and are valid under Swiss law (see CAS 2018/A/5779 Zamalek Sporting Club v FIFA). In one of the very limited number of cases where CAS accepted submissions on the applicability of a force majeure clause (and subsequent discharge of obligations), the CAS Panel held that parties may be discharged from their obligations, where performance of the contract has become impossible, caused by circumstances that were beyond the control of the parties, and such circumstances were not attributable to any of the parties (see CAS 2014/A/3463 & 3464 Alexandria Union Club v Sanchez & Cazorla - in an arbitration which arose out of events of the Egyptian civil war).

Conclusion

The above analysis clearly illustrates the difficulty that self-regulation faces regarding its subsequent decision making. The complexity of the contractual relationships between the parties, the enormous commodification of the sport and the uncertainty surrounding the future of this invisible beast (Covid-19), all suggest and create a rather bleak future. Perhaps, the only 'winners' in this awful situation are the sports lawyers, who have now received a difficult task, but, at the same time, equally remarkable, for this exciting and evolving discipline of law.

 Dr. Gregory Ioannidis, 11 May 2020

*Dr Gregory Ioannidis is a sports lawyer and an anti-doping litigation expert. He is a former The FA registered lawyer and has acted for and represented many players and clubs around Europe, Africa and Asia. He is currently the Course Leader of the Master's Programme LLM International Sports Law in Practice at Sheffield Hallam University and an academic associate at Kings Chambers in Manchester.

** The views and opinions expressed in this article are those of its author. Nothing in this article should be construed as constituting legal advice, nor should it be relied upon in place of legal advice properly obtained. The reproduction of or reference to any material contained within this article should be attributed to the author and, where possible, a link to this site should be provided.