As Covid-19, aka the Corona Virus, began affecting the soccer world, many leagues across Europe began taking precautionary measures by playing their fixtures behind closed doors. For example, the Champions League match between Paris Saint-Germain and Borussia Dortmund was played behind closed doors. However, that did not stop fans from amassing outside PSG’s stadium. Thousands of fans gathered to celebrate the victory.
It seemed like soccer games would go as planned – that is until players began to be infected.
Timo Hubers (Hannover) was the first player reported to be infected. Then Daniele Rugani (Juventus) – infected. Jannes Horn (Hannover) – infected. Manolo Gabbiadini (Sampdoria) – infected. Mikel Arteta (Arsenal) – infected. The latest player infected is Callum Hudson-Odoi (Chelsea).
This is when some of the bigger soccer leagues took a closer look at how Corona Virus is impacting the sport and began to postpone matches.
Postponing league games is a great safety and public health move. However, looking from a Premier League perspective, what happens if the league year is cancelled because of government regulations or the league itself cancels the season? It seems that the litigation opportunities are endless. What would ticket holders for cancelled games receive as a refund? Would sponsors litigate over the allegation that the broadcasting companies and teams which they sponsor did not fulfill their obligations? Can players sue for negligence of exposing them to the Corona Virus by not taking timely action? The question then becomes whether the outbreak of Covid-19 mutually releases the parties from their contractual obligations.
Under U.S. contract the doctrine of impossibility exists. Under contract law, impossibility is an excuse that can be used by a seller as an excuse for non-performance when an unforeseen event occurs after the contract is made which makes performance impossible. Similarly, the English Common law has developed it own doctrine. It is called the Doctrine of Frustration. The doctrine acts as a device to discharge contracts where an unexpected event either rendees contractual obligations impossible, or drastically modifies the party’s initial purpose for entering into the contract. The doctrine usually comes into play to cancel contract obligations when no party is at fault in breach of the contract. The doctrine is seldom applied by English courts because there is no clear cut standard of what is considered a frustration and the doctrine has been developed on a case-by-case approach. In situations such as this, the party invoking the doctrine will have to show that the cause of the frustration was an unforeseen event and as a result made the party incapable of performing their promise.
If there is a situation where the Doctrine of Frustration may apply, it is possibly this. This is an unprecedented modern era global virus outbreak which literally brought sports and life to a halt. It is arguable that this is not a foreseeable event, as experts cannot predict when a virus will break out and be classified as a pandemic. Many contracts were signed years before the public even knew the Covid-19 existed. Players, teams, sponsors would not have predicted a global event like this which would pause all sports.
What makes Doctrine of Frustration obsolete in English courts is because of one boiler plate clause: force majeure. The Doctrine of Frustration does not apply if the parties have a force majeure clause in their contract. Many, if not all, commercial contracts have this clause as a formality. A clause that is many times boilerplate formality is going to be the most important clause in contracts. Force majeure, french for superior force, “A provision commonly found in contracts that frees both parties from obligation if an extraordinary event prevent one or both parties from performing. These events must be unforeseeable and unavoidable, and not the result of the defendant’s actions, hence they are considered “an act of god”. What is considered a force majeure event is negotiated by the parties when drafting the contract.
The CAS has heard a case before which dealt with a force majeure clause. In Fédération Royale Marocaine de Football (FRMF) v. Confédération Africainede Football (CAF), FRMF wanted to postpone the African Cup of Nations tournament in 2015 due to concerns about the Ebola virus. FRMF relied on a force majeure clause to justify their decision and escape liability. However, CAS ruled in favor of CAF. The CAS found that the Ebola virus was not a force majeure event because it did not make organizing of the tournament impossible, but only made it difficult. The CAS heavily relied on expert evidence stating that Ebola could only be spread through direct contact with organic liquids, and there was no proof that the virus is airborne. CAF harshly punished FRMF with fines for not putting on the African Cup of Nations games, but CAS reduced the fines and other sanctions imposed by CAF.
The situation occurring right now is extremely similar to the Ebola CAS case. With a “precedent” set, what would happen if the Premier League cancelled its season or UEFA cancelled the Champions League? Well, UEFA would have to establish that their force majeure clause includes an outbreak such as the Corona Virus. They would then have to demonstrate that organizing of the tournament was impossible. This may be easier to establish because parts of countries are quarantined, players are infected, the virus is transmitted through the air, and there are countries establishing travel bans. Many of those factors were not present when CAS was deciding the Ebola case.
It is going to be very interesting to see how soccer leagues and soccer competitions deal with the postponements, especially if the current situation lasts longer than people hope. Not only are there many legal implications, but plenty of business implications as well, such as lost revenue and employee wages. Will UEFA waive the FFP rules for teams who are struggling financially? There are many questions to be asked, but with no answers currently. The only certain thing is that people want this to end and to go back to a life with soccer on TV and not having fear of the Corona Virus always in the back of their minds.
I want to take moment and say a few words about how this pandemic is affecting student athletes. I have many friends around the country who are playing Division III sports, some of whom are in their senior season. It is painful that their season is unexpectedly and abruptly coming to a halt. They dedicated their time and effort to compete, not only for their well being, but because they love their respective sport. The NCAA has backed the idea of spring athletes receiving one more year of eligibility. That is a great move by the NCAA. However, D-III athletes do not receive financial aid or stay in fancy dorms like D-I athletes. Many of them just cannot afford to stay and play another year. For all of the D-III students affected, as Jake Cercone said in his last post, “you’ll be remembered. I hope you all understand that the cancellation of games is not in vain. It’s just what had to be done.” As hard as it is on those students, I am sure they know some things are just bigger than sports.