MIAMI, Fla. (6 April 2020) —
With each passing week, it becomes more and more likely that the European leagues will not be finishing their seasons.
The coronavirus pandemic has caused a nightmarish situation across the world, not only in terms of the virus itself, but its effects on the global economy, peoples’ livelihoods, and life in general. Sport has of course also been brought to its knees. The game of football is dealing with significant and unprecedented challenges.
Despite a lot of noise coming from UEFA and FIFA and the assertions of certain leagues’ presidents notwithstanding, looking at it from the perspective of a football lawyer, I think a strong case can be made that legal considerations might very well spell the end of the 2019-20 season.
Indeed, one European country has already taken decisive action. Belgium became the first top-tier European league to cancel the rest of its season following the outbreak of the coronavirus. The current table (standings) will be declared final, with the league leaders Club Brugge as champion. In a statement, the Jupiler Pro League said: “The Board of Directors took note of the recommendations of Dr. Van Ranst and the government that it is highly unlikely that games with the public will be played before June 30. The current situation also makes it very unclear whether and when a resumption of collective training courses can be foreseen at all.”
“Even if games behind closed doors could theoretically be possible, the additional pressure they place on health and order services should be avoided. Moreover, decisions by local authorities threaten to make a joint course of match days impossible.” At this stage, the cancellation remains a recommendation pending a meeting of the league’s General Assembly on April 15. The General Assembly, however, is expected to endorse the recommendation.
UEFA, as could be expected, took issue with the Belgian league, and promptly issued its own declaration, threatening to expel from next season’s Champions League and Europa League any teams from countries that do not finish their seasons. In a letter sent to all 55 of its member associations, the organisation stated: “We are confident that football can restart in the months to come – with conditions that will be dictated by public authorities – and believe that any decision of abandoning domestic competitions is, at this stage, premature and not justified.” The strength of UEFA’s stance will likely be tested if and when additional leagues decide against completing their seasons.
It could also reasonbly be argued that FIFA and UEFA are operating in the same alternate reality that certain politicians continously live in.
My opinion that legal considersations could well spell the end of the current seasons is shared by several leading sports lawyers who have also raised serious doubts about the implications of extending the various European leagues’ seasons beyond June 30. Opinions about whether the season can be completed vary, but a number of lawyers say it is not realistic to expect.
Just today, it was reported by The Athletic that FIFA is expected in the next 48 hours to confirm an indefinite extension to the 2019-20 season across the globe, allowing each country’s football authority to determine when campaigns can finish. This comes after UEFA said last week it is committed to finishing the current season, denying that its own president, Aleksander Ceferin, had set a deadline of August 3 to complete all outstanding games.
Teams are facing a potential web of legal entanglement should the season extend beyond June 30, which is highly likely. The biggest obstacle, apart from the virus itself and governmental actions, are player contracts.
Across Europe, player contracts are drafted with that date as a deadline; thus playing beyond June 30 will require teams, their lawyers and players’ representatives to make a lot of concessions. Each year, June 30 marks the official end of one season and the start of the next. It is a hard date that no one ever expected would need to be altered. But running up against June 30 is exactly the predicament Europe’s clubs, leagues and players are in.
Here is an example, from LaLiga, of players whose contracts expire on June 30th (from Transfermarkt data): LaLiga contracts expiring 2020 via transfermarkt.com
While the anticipated FIFA announcement will permit contract extensions for players whose deals run out on June 30 and also alter the dates of the summer transfer window, that does not mean that a player contract that expires on June 30 is automatically extended.
As a fundamental principle of contract law, any extension of a contract, which effectively amounts to a modification of the contract, can only be agreed to by the parties to the contract in writing, As FIFA is not a party to a player contract they do not have the authority to modify a contract and force a player to remain with a club if his contract is expired.
Another problem for FIFA is that there are 211 member associations, and a term such as what constitutes the end of a contact turns on contract law in a respective country. For example, in England, stating in the contract that it expires on June 30 is very clear and a court is almost certain to conclude that was the date intended by the parties. English courts, like their American and Canadian counterparts, are not likely to look beyond the “four corners” of the page where a contract is clear and unambiguous. However, in European civil law systems, a court might interpet that contract using a subjective viewpoint and conclude that the June 30 date was for convenience and the parties actually meant “when the season ends.” Thus, the prospect of litigation over an attempt to extend a contract beyond June 30 is a realistic possibility.
While nothing prevents a player from agreeing to a contract extension, it begs the question: Why would a player who was going to be out-of-contract on June 30 agree to a short-term extension? If a contract was set to expire on June 30th and a new contract has not already been agreed to, it likely signals a lack of interest on the part of that team to resign the player. Any contract extension, therefore, would likley be only for a short term. However, the way the situation stand at present, it would be unclear when to have the contract extend to. A player representative would likley advise a player not to sign a contract that states it will be valid “until the end of the 2019-20 season” when it is unclear when that will be. To sign such a contract would leave a player contractually bound for an indefiinte period.
While it makes sense for all parties to negotiate and find a way through this, the simple fact is a player is not required to agree to these short-term extensions.
A player also needs to be concerned with getting injured while playing on a short-term contract and then finding himself unemployable and without a job. It is a balancing act that each player in such a predicament will have to discuss with his agent. Personally, my opinion is that some players will welcome the opportunity to be paid for a few more weeks or months of employment, but there will be others who will refuse to accept any extension because they will perceive it as putting their chances of a longer-term contract with a new club at risk.
FIFA has set up a working group to look at the regulatory issues posed by the pandemic. According to FIFA, there are three issues that must be addressed when contemplating an extension of the season: Expiring contracts, the “appropriate timing” for the next transfer window (currently scheduled to open on July 1) and “frustrated” agreements that can no longer be fulfilled because of the COVID-19 outbreak.
The concept of frustration of purpose is a defense to the enforcement of a contract. It is a term we will probably get very used to hearing as contracts that cannot be completed due to the coronavirus make their way into the hands of lawyers.
Frustration of purpose exists in American and Canadian jurisprudence, and, as they are derived from English common law, the concept is very much alive in the UK. Additionally, civil law systems, such as Switzerland’s, where FIFA is based, also recognize this legal concept. In its simplest expalanation, it stands for the proposition that an otherwise valid contract can be set aside if an unforeseen event makes it impossible for the contract to be fulfilled. Frustration is a parallel of another defense to contract enforcement known as impossibility of performance. Both of these concepts come into play because football player contracts do not contain “force majeure” clauses which deal with what happens in the event of something unforeseen.
The legal logistics in player contracts is also further complicated by the fact that many player contracts are increasingly skewed toward incentives, which act as bonuses should a player meet certain pre-negotiated performance metrics, for example, playing minutes, appearances, starts, goals, etc. Clubs and players usually see these contingent payments as a win-win because the clubs recognise that they gain if a player meets these targets.
However, what happens if the seasons are cancelled? Clearly, a lot of players who might reasonably have expected to receive bonuses will not. If a player knows he isn’t going to be able to achieve these bonuses due to the season being cancelled, is he also going to agree to a cut in salary or a salary deferrment? Probably not.
It’s also conceivable that other players will only sign extended contracts if they are rewarded for the added risk of injury. If a club elects not to pay extra for this contingency, the clubs might simply decide to play on with smaller squads. UEFA and FIFA are very concerned about the integrity of the game, but how much integrity would there be if the current seasons are finished with squads that are smaller with some players not participting?
Other stumbling blocks
Another potential legal stumbling block is one where a player’s contract expires on June 30, which means that he is out-of-contract on July 1, 2020. However, FIFA has stated it is going to adjust the primary European transfer window. Thus, there is the distinct possibility that a player out of contract on July 1 cannot be employed or registered by another club until the new season starts because the transfer window has moved. This could be an illegal restraint of trade and result in yet more legal action.
We also have the issue of what happens over the next few weeks with the progress of the virus. While Italy and Spain might be peeking and things can be expected to slowly improve, each country is in a different curve. Right now, most countries have a ban on large gatherings, and there is no defined end date. So for any league to be restarted it would necessarily means playing in empty stadiums until the ban on gathering is lifted. That is a prospect many teams will want to avoid.
Beyond the thorny issue of player contracts, there are also various broadcast and commercial contracts that need to be considered. There is the real concern that millions of Euros might have to be given back to media rights holders should the seasons not be completed. This of course, is on the minds of league executives and weighs in favour of completing the seasons no matter how long it takes to do so. However, whether a media rights’ holder can contest a league’s decision to cancel the rest of the season (in light of the pandemic) and reclaim some money is also questionable from a legal point of view.
Looking further, from the standpoint of practicaility, what is the sense of playing the current season so late into the summer that it then interferes with next season? This year’s competitions have already been disrupted; it doesn’t seem logical to also have next years’ seasons be disrupted.
It makes far more sense to award the title this year to the respective leaders of each competition, and decide the European competitions according to the current table (standings). Additionally, the top two in each of the lower divisions of leagues should be promoted, and for next season, there should be no relegation. Thus, most top tier European leagues would have 22 teams for next season (Germany would have 20). The leagues could then be readjusted over the coming seasons to get back to their normal sizes. It’s a common sense solution for an unprecendented event.
As for broadcasters, a settlement is just a matter of negotiation and the will to reach an agreement.
Don’t get the wrong impression. I want seasons and championships to be won on the pitch like every fan. However, on balance, I don’t think extending the season for months is realistic or possible from a legal point of view. I simply don’t foresee players agreeing to short-term extensions if they know that there will be a lot of games squeezed into a short period of time with little rest in between, followed by only a short break before jumping into another full season. Under such circumstances, the risk of injury will be greatly increased.
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