By Thomas Barnard and Ted Powell
The sports industry is being hit hard by the spread of COVID-19 and there has been mass postponement of fixtures due to the pandemic. We have summarised the measures implemented by clubs and governing bodies and have highlighted a few of the potential issues for those engaged in the sports industry.
Responding to COVID-19
In football, the Premier League and Football League suspended all matches until the 3 April, meaning no games in the Premiership, Championship, League 1 or League 2 will be played until then. In addition, the Women’s Super League will also see no action until that date. It looks very likely, based on latest government announcements, that a further suspension will be implemented.
In rugby, the final round of the Six Nations was postponed with the fixture between Wales and Scotland being cancelled 24 hours before kick-off. Notably, the Rugby Football Union suspended all rugby activity, from professional to community level, until 14 April. This decision came after the government’s updated advisory on the evening of 16 March, and coincides with the Scottish Rugby Union’s and Welsh Rugby Union’s decision to suspend rugby at all levels. In cricket, England’s tour of Sri Lanka was declared off.
Various Europa League last-16 ties were played in empty stadiums and, in Germany, the CEO of the German Football League, Christian Seifert, stated that playing games behind closed doors is the only chance of survival in the near future for clubs.
Continue as usual
On 14 and 15 March, multiple National Football League fixtures went ahead as usual. At Nots County, a crowd of almost 5,000 gathered. The Rugby Football League also decided to go ahead with rugby league fixtures, although two were cancelled. Some Netball Super League and British Basketball League games were also played. At the time of writing, the 2020 Tokyo Olympics are still set to go ahead.
On 16 March, Boris Johnson announced that all non-essential social contact should be avoided. In light of this, it seems incredibly unlikely that any more sport fixtures will go ahead in the UK over the coming weeks or possibly months.
The governing bodies that continued with their fixtures may see complaints raised by clubs and players. In the National Football League, a number of clubs refused to play their fixtures and managers have been highly critical of the decision to allow games to be played. In relation to the Olympics, athletes such as Guy Learmonth are already stating that Tokyo 2020 should be postponed. In rugby league, four players at the Toronto Wolfpack have started to experience COVID-19 symptoms following their last match on 11 March. In some instances governing bodies owe a duty of care to participants and it’s feasible that action may be brought by clubs and their players against governing bodies that encouraged fixtures to go ahead despite knowing about the dangers of COVID-19. We are not yet aware of any such cases and there will be difficulties with such claims, but it is a possibility.
There are also issues for the governing bodies that have postponed or cancelled fixtures. There is a real risk that all fixtures will not be able to be completed and, if this is so, the governing bodies may face action from clubs that are relegated.
For example, Rule C14 of the Premier League Handbook states “the bottom three Clubs in the table at the end of the Season shall be relegated to The Football League”. A “Season” is defined as the period commencing on the date of the first match on the fixture list of the league’s first team competition and ending on the date of the last. If the season is ended early and the bottom teams are relegated, it’s arguable that the Premier League will have acted in breach of Rule C14 as the “Season” will not have been completed. Given the huge financial implications of promotion and relegation to and from the Premier League, impacted clubs will want to know what rights they have if they suffer detriment as a result of the changes.
In addition, governing bodies may also face action from broadcasters if such broadcasters are unable to show the amount of games provided for in their agreements with the governing bodies. Such action may be driven by the broadcasters experiencing cancellations and claims from their customers, who have paid for a service that is no longer delivering the fixtures it promised.
Clubs that fulfilled their fixtures could face various issues. Clubs have a duty of care to their players, staff and spectators. As a result, clubs could face negligence claims if their employees fall seriously ill as a result of fixtures being played. In terms of spectators, clubs need to be aware of their public liability responsibility and the risks associated with allowing thousands of individuals to gather on their premises, particularly in light of the latest government guidance.
However, clubs that cancel fixtures may also face problems. Leeds Rhinos went against the Rugby Football League and pulled out of their fixture on 14 March. The Rugby Football League said the "consequences of this decision on the match, and any sanction, will be determined by the Rugby Football League board".
The financial impact on clubs may also be very significant. The loss of gate receipts will severely impact the finances of clubs for who ticket sales are a main source of income. Peterborough United chairman Darragh MacAnthony estimated that loans of £300,000 to £400,000 would be needed to keep the average League One club afloat.
The cancellation of games may also give rise to contractual issues. Sponsors may refuse to make payments relating to the cancelled games or impose contractual charges if certain requirements are not met. In addition, season ticket holders and those with hospitality packages are likely to request full refunds for cancelled and/or rearranged games.
However, it is possible that the legal doctrine of frustration or existence of a force majeure clause will mean that COVID-19 releases parties from their contractual obligations. The doctrine of frustration will have effect where an event arises, which the parties have not provided for (such as COVID-19), which makes performance of the contract impossible. Alternatively, the parties may have expressly stated in force majeure clauses that certain events, such as epidemics, will release the parties from their obligations. The effect of any force majeure clause will depend on the precise wording of the clause, and, as with the doctrine of frustration, is dependent on the background defects.
Players may face disciplinary action if they go against their clubs’ decisions and refuse to play in fixtures that are going ahead. In addition, clubs such as Chelsea and Liverpool told their players to self-isolate and a failure to do so could also lead to disciplinary action.
What can we do?
Our experts can help governing bodies, clubs and players navigate through this uncertain time. We can:
- advise on the duty of care owed to players, staff and spectators;
- advise on rights and coverage under insurance policies;
- comment on rights and duties under contracts with players, suppliers, brands and other key relationships;
- advise on whether COVID-19 will release parties from their obligations under contracts; and
- assist with disciplinary issues involving governing bodies, clubs and players.