By Tom Barnard and Ted Powell
The coronavirus is continuing to have a significant impact on the sports industry and fixtures across all sports have been postponed until at least April. We have considered a few of the key contractual points that professional athletes should be aware of to help them navigate this unprecedented situation.
Due to the financial implications of the coronavirus, clubs may not be able to pay athletes their full wages. Athletes should carefully check the circumstances in which the club is entitled to reduce their wages. Commonly, contracts will only entitle the club to reduce an athlete’s wage if they have been injured for a certain period of time or if they are suspended for a disciplinary offence, for example. Imposing a reduction due to the coronavirus is unlikely to be provided for in a contract (whether expressly or by implication) and clubs will therefore have to seek an athlete’s express permission before any deduction can be imposed.
If an athlete chooses to agree to a wage reduction, we advise that they obtain certain written protections. Such protections could include a definitive time period on the reduction and an amendment to injury pay provisions. This could prevent the athlete from being exposed to further wage reductions if they are injured, for example, during the period of the initial wage reduction.
Athletes may also have provisions in their contracts that entitle them to performance based bonuses relating to factors such as first team appearances or goals. Athletes should seek to ensure that involvement in any postponed fixtures will still contribute to their bonuses, regardless of when they are played.
Some bonuses may also be dependent on the club obtaining a certain league position or promotion. In such cases, athletes should closely monitor how the season is to be ended and ensure that the relevant governing body determines promotion and relegation in a fair and lawful manor if all games cannot be played.
Training from home
Athletes should check their contracts for provisions stating where their place of work is. It is likely that that the contract will list the club’s stadium and training ground, however, it is also common for the contract to include any other place that the club may require. Such provisions mean the athlete can be asked to train and prepare for matches whilst locked down at home due to the coronavirus.
It is also common for contracts to require athletes to comply with and act in accordance with all lawful instructions of any club official. Such provisions mean that whilst at home, athletes are obligated to follow plans set for them by head coaches and their assistants, strength and conditioning coaches, dieticians, physiotherapists and anyone else authorised by the club.
The implications of these provisions are significant. As well as disciplinary action, clubs will in certain circumstances be entitled to terminate an athlete’s contract if the athlete fails to comply with certain terms. This remains the case even if an athlete is working or training away from their usual place of business.
An athlete’s contract is likely to contain provisions requiring the athlete to maintain a high standard of physical and mental fitness and not indulge in any practice that might endanger such fitness. These provisions place a general duty on the athlete to maintain a fit and active lifestyle whilst locked down due to the coronavirus. This could cover actions such as limiting alcohol consumption, keeping a good sleeping pattern, maintaining weight levels and staying mentally stimulated. Athletes will have to maintain their fitness in line with government guidelines on leaving the house, for instance.
An athlete’s contract may also contain provisions that require them to attend and participate in certain events, such as interviews and photo shoots for the media and commercial partners. If a contract contains such provisions and a club requests that a player participates in such an event, both the athlete and the club will have to ensure that any participation complies with the government guidance restricting current movements.
In football and rugby, the Premier League, English Football League and Premiership Rugby are discussing plans to play postponed fixtures throughout July and August. Typically, athletes’ contracts will terminate on a specified date, such as 30 June in the case of football. This could mean that an athlete’s contract ends before the postponed fixtures have been played. Athletes have a couple of options in these circumstances.
They could choose to terminate the contract on the agreed date and leave the club. This may be preferable if the athlete is being offered more favourable terms elsewhere.
Alternatively, the athlete may want to stay with the club until the postponed fixtures have been played. If an athlete chooses to do this, we would recommend that they obtain written protections from the club. Such protections could include a secured wage for the postponed fixtures and a guarantee that the athlete’s performance based bonuses will still apply.
It remains unclear how any extension of the season will dovetail with the existing transfer windows, but one would expect clubs, players and the governing bodies to take a pragmatic approach to such issues given the unprecedented scenario.
What can we do?
Our experts can help professional athletes navigate through this unprecedented situation. We can:
• help athletes understand their rights and duties whilst locked down at home;
• advise on changes to athletes’ wages;
• draft written protections in relation to wage reductions;
• advise on the termination of athletes’ contracts; and
• draft written protections in relation to contract extensions.