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Coronavirus - Potential legal issues facing sports administrators and stakeholders17th March 2020 Sports Law
There has been substantial debate and conjecture as to how sports administrators will deal with the Coronavirus crises. Universally all professional sport has been postponed. The most high profile is the Premier League and European football competitions. UEFA, Premier League and EFL are all meeting this week to discuss what to do. UEFA met today and postponed Euro2020 for one year.
The debate concerns public health issues, social, sporting integrity and legal issues. The Public Health issues are without question the most important of these considerations, however, this note focuses solely on the legal issues facing football stakeholders at this time. Sports Lawyers are a bit like VAR. Their job is to get the correct result regardless of how popular it is.
Inevitably there will be those that benefit and those that feel they have suffered from the Regulatory bodies decisions. An obvious example would be if this seasons Premier League fixtures are voided and Liverpool are not declared champions. An equally obvious example would be if the current league positions are treated as final. Hearts have already said they will sue if the Scottish Premier League is declared as completed. The third example is if the season resumes later in the year by which time each clubs playing staff could be different.
Legal Challenges to governing bodies decisions
Until recently the major legal issue in football was Manchester City’s challenge of UEFA’s ban. Pointedly Manchester City said it was challengeable legally as it was a matter investigated by UEFA, prosecuted by UEFA and determined by UEFA. Sport governing bodies be it UEFA, FIFA, RFL, RFU or British Boxing Board of Control are not formed by statute. They are self-appointed administrators and their power derives from tradition and the participants recognition that the professional sport they compete in requires a regulator dedicated to the sport/competition. There are now minimum standards of sports governance for sports deriving income from lottery funding but the standard of sports governance varies from sport to sport and is certainly not as uniformly consistent as can be expected from say the jurisdiction of the High Court. For that reason most sports allow an appeal process to a body such as the Court of Arbitration for Sport which is where Manchester City have taken their appeal.
The Premier League is in effect a co-operative of the founding members who broke away from the Football League in 1992 to take advantage of a lucrative television rights deal. The Premier League exists for the collective commercial benefit of its member clubs.
Each governing body creates its own rules and regulations. These are not “laws” which can only be created by statute or common law but have the status of laws for the purpose of internal administration of the relevant sport. The courts and government take a traditional view that sports administrators are the best people to make these internal laws and to interpret them with internal arbitration procedures.
The threshold is however that sports governing bodies are not ‘above the law’ so their rules have to comply with the law of the land and are subject to government intervention.
Most decisions of the EFL or Premier League are taken by democratic vote. If The Premier League decide the current league placings are final, so for example Liverpool are champions and Bournemouth are relegated that decision may be taken in accordance with their procedures so it is not a breach of their regulations. Therefore it is not ‘illegal’ as far as the sport is concerned but may be ‘illegal’ if it contravenes the general law of the land.
The legal challenge would be that the rules of the competition cannot be changed part way through the competition otherwise it breaches natural justice. There is no current rule that the governing bodies can rely on that allows for that decision without changing the rules.
Other challenges by adversely affected clubs would include ‘unfair prejudice’ and breach of competition law.
It is pertinent to note that it has been observed widely in Liverpool that had Liverpool already won the league it would have been impossible to void a competition that had already been ‘won’.
A further complicating factor is the international and European fixture commitments that may prevent the Leagues being able to restart when public health concerns allow it.
Employment and Contract issues for players
There are various rules in football and other sports that are introduced to protect the integrity of the sport. Examples in football are the transfer window and the fact players can be ‘out of contract’ on June 30th each year. Currently players who will be out of contract are arranging contracts with new clubs and agents are also working on prospective transfers during the window.
Clearly if the administrators agree to suspend the season and resume it later in the year they would logically have to also move the dates when players are out of contract and the transfer window.
Notwithstanding football regulations players may cite Employment and Contract law to argue they should be allowed to move which has a direct consequence on sporting integrity, if a player can leave a club and join another prior to the end of the season. For example what if Bournemouth signed a star player and as a result get out of relegation at Watford’s expense. Would Watford sue the League for allowing this to happen? Remember the Tevez case where Sheffield United successfully sued West Ham for fielding an ineligible player who an independent FA tribunal agreed made the difference between West Ham staying up and Sheffield United being relegated.
Currently the major leagues are synchronised but that is much more difficult to achieve now and so a player may argue they will miss out on a move to another country and expect to be compensated.
Another potential issue is player bonuses. The Liverpool players may well have bonuses for winning the league as will players with clubs vying for promotion. Players also trigger sponsor bonuses for international appearances which will be affected by UEFA postponing the Euros.
Premier League footballers are professional athletes and so playing football is their job. If the Government require people to work from home how can a footballer perform in a stadium?
An often misunderstood concept in sport is that of ‘sporting integrity’. It is the idea that sport has certain unique characteristics that justifies certain rules and regulations being imposed that may depart from the law to the extent that it is regarded as intrinsic in making the sport ‘fair’ . An example is the transfer window which is not of course a concept prevalent in normal industry and is arguably inconsistent with employment law but is regarded as preserving the sporting integrity of the league competition.
This concept could be argued both ways depending on whether this season is voided. Some sports such as golf anticipate an event not being completed and the result standing if say only three quarters of the event is possible. By the same token if a marathon runner is leading at the 20 mile stage then comes to a road block are they declared the winner or does sporting integrity decree they have not completed the race?
The problem for the Premier league is there is no rule that states a minimum number of fixtures constitutes a competition. There is a rule that states a club’s results in a season will be voided if they fail to complete 75% of their fixtures but that is intended to apply to clubs that are unable to complete fixtures due to say insolvency.
Most clubs rely on gate receipts and advanced sales of season tickets to stay solvent. If the football season is suspended there is every possibility that some clubs may not survive to be able to fulfil their fixtures.
The major commercial stakeholders in football are the Broadcasters and Betting companies. The Broadcasters will have contracts to show a certain number of games from a particular season and any decision regarding the voiding/continuation of the season will have repercussions for those contracts. Sky would not be suffering any direct loss at this stage unless viewers start cancelling Sky Sports but that may come to pass and traditional legal issues such as whether a breach has arisen due to force majeure arise regarding the issue of damages/compensation which could affect the league/clubs financially. Betting companies may also face issues directly as a result of the League’s decisions. For example if the league is voided does that void all bets including say Liverpool winning the League?
Fans rights should also not be forgotten if the season is voided. On the one hand it could be argued legally they have got what they paid for in watching a game of football but they did not attend on the basis the match had no consequence such as would be the case with a friendly. The same principles could apply to sponsors and corporate partners.
The Sports governing bodies cannot override government legislation or declarations. Initially last week the government said it would not ‘ban’ football but the football authorities took the step to suspend the league in the light of positive tests amongst players and coaches. Now there is in effect a ban on mass gatherings therefore the leagues cannot start again until that ban is lifted.
Football, Rugby and other sports that have long seasons that are only partially completed have similar issues. Other sports such as golf, racing and boxing are driven by stand-alone events that are largely not interconnected and so suspension or cancellation of such events have lesser legal ramifications however the economic, social and mental health issues are all too obvious.
There will be stakeholders at all levels examining their contracts and it is to be borne in mind many participants in individual sports are effectively self- employed and sports promoters/administrators income entirely depends on the events going ahead.
Potential solution for the Premier and Football League
Assuming the Coronavirus crises prevents the English leagues resuming until July/August my suggestion would be that the opening fixtures of next season are the remaining fixtures from this season. The results from those fixtures count towards both this season and next season. The teams in title, promotion and relegation positions at the end of those fixtures are promoted/relegated but only at the end of next season along with the teams in those positions at the end of the season. That way the results this season count for something and whilst promoted teams say Leeds and West Brom would have another season in the Championship that is better for them than starting next season from scratch. There would be some logistical issues with numbers of teams being promoted and relegated but that could be resolved.