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Sport on Lockdown - Return to Premier League Football in June?28th April 2020 Sports Law
Whilst the Prime Minister has reiterated that lockdown measures should remain in place the proposed move to lift exercise restrictions on or around 7th May might permit a return to some professional sport, subject to proper agreements and reassurance criteria being met. There has been talk of matches behind closed doors with a limited number of attendees (e.g. 350), no fans outside the stadium and the possibility of broadcasting additional games outside the current rights granted to BT/Sky/Amazon.
This could be Football’s opportunity to take the lead and right some of the wrongs that have crept in to the game in recent times. Some of the actions by decision makers and player misbehaviours has seen the game lose some of its credibility with the perception being that it is greedy and self-obsessed. The Premier League and Football has the chance to use its vast resources to demonstrate to the public it has the ability to correct its image and lead society in pulling together to continue to return to normal as quickly as possible, whilst still being safe!!
With some Clubs and Players leading the way with their considerable support of the NHS and other public health initiatives, this could be expanded by Football demonstrating discipline and self-control to provide the Nation with a well-deserved morale boost. It is clear that this is the Government’s hope but there is a lot to factor in when determining if the season can resume as we summarise below.
Duty of Care
The Government has a Duty of Care to the public and they have set-out their 5 point action plan to lift restrictions:
- NHS must be able to cope and provide sufficient care
- Evidence showing a sustained and consistent fall in daily death rates
- Reliable data showing the rate of infection is decreasing to manageable levels.
- Confidence enough tests and PPE are at hand to use
- Confidence any adjustments won’t trigger a second peak
With positive indications coming from central government it is hoped that these will be met sooner rather than later and that a lifting of some of the restrictions will take place, particularly those around exercise.
In regards to the National Governing Body’s (The FA) Duty of Care to its members, this has been passed on to the Premier League, which now has a Duty of Care to its stakeholders (since its inception on 27th May 1992) – this was recently accepted publically because of the suspension of play – any breach of this could lead to wide spread litigation. This Duty of Care extends to the Clubs as members of the Premier League and separately as them as employers in their own right. In addition, the clubs also have to comply with Employment and Health & Safety Legislation, for example, providing a safe place to work; the same for many other Premier League stakeholders such as the media and sponsors.
Safe place of work. Accordingly, a return to Premier League action will depend on how all the commercial entities and individuals go about their business and in particular how disciplined they can be to provide the reassurance to the Regulators (The FA and PL) and the UK Government by demonstrating that they will act in accordance with the restrictions/ limitations imposed to provide a safe working and playing environment.
Employment law. It has to be remembered Premier League footballers are employees and have the same employment rights as everyone else. That is why the Professional Footballers Association (the PFA) have hired experienced counsel to clarify that even if this season goes beyond May 30th players such as Adam Lallana at Liverpool will still be out of contract and free agents.
Furloughing staff. Whilst technically clubs are able to utilise the scheme the players are fixed term employees so not at risk of redundancy as contract would have to be paid up. Further there is the PR issue of apparently wealthy clubs subsidising wages. A claim under the scheme may have been made on the basis some players may have been furloughed to a certain date. It may well be the clubs now need those players to return to training which is of course not permitted whilst a player is furloughed. Equally several administration staff needed to plan the staging of the games may have been furloughed to a certain date.
Player’s Contracts. The standard player contract obliges the player to participate in the club’s matches and to attend at any reasonable place for the purpose of training and match preparation. The key issue here will be if a player objects that the venue for the training/match are not safe and so not reasonable.
Player’s health and well-being. Under a player’s contract the player has to submit his medical records and undertake any medical examinations as the club may reasonably require. The player must report any injury or illness to the club so he must disclose if he has symptoms or has tested positive for Covid-19. The player must not be involved in any activity that voids any insurance cover maintained for the benefit of the club on the player’s life or physical wellbeing. This could be an issue if say there is evidence the player has flouted lockdown or been reckless in his approach to catching the virus.
On the club’s part the club has to arrange all appropriate medical examinations and to use reasonable endeavours to ensure that any policy of insurance maintained by the club for the benefit of the player continues to provide cover. In addition the club has to comply with its own health and safety policy. In essence the club has to provide a safe place of work.
If the player is incapacitated due to the illness or suffers an injury having been rushed back too quickly and that becomes a long term injury the club might seek to terminate the contract but the players career ending insurance may have been compromised. The player may in turn seek to sue the club for breach of contract or negligence, if it is proved that the actions or lack of actions (by the club, regulator or government) resulted in a breach of the Duty of Care (towards the player/ employee), and that that Breach had a causative effect on the (negative) outcome.
Home circumstances. It is important to understand that different employees have different circumstances requiring a different approach to the management of their situation. For example two people doing same job, they are also the same age but one travels on public transport and has an elderly relative at home. The other lives on their own and walks to work. in the current circumstances, only one can come back to work or very soon, whilst the other cannot or will not be allowed.
Whilst there is inevitably going to be an uptake in new approaches to social interaction given the increased understanding about the benefits of social distancing and norms surrounding personal hygiene, it will still come down to self-discipline, and why, for example, the German Bundesliga has stressed that testing (and potentially Personal Protective Equipment – masks for players) is the key to a return.
A Covid-19 Football Charter
A unique Charter could be drawn up that all the clubs and stakeholders (and their employees) sign-up to, obviously including a separate signature for each individual employee associated with the provision of training and match-day requirements.
The leagues can impose rules and regulations on the players and restrict the players conduct to a certain extent on the grounds of ‘sporting integrity’ but a player can still cite employment law if he believes his rights are being infringed. Accordingly, it is finding the right balance between the desires to return to playing (and showing) football whilst making sure everybody’s health and safety is of paramount concern to prevent the spread of infection.
Mid-Season Training Camps
Prevention of Injury. Given the players high physical performance levels, we have seen that during lockdown players have been training at home but not to the same level they would under normal circumstances and certainly no-where near match day fitness. Therefore it is essential that there is a strength and conditioning process of a minimum of 3 to 4 weeks. This is likely to be worked up with training resuming in small groups with social distancing (i.e. the 2 metre rule), before a return to wider training as a squad including the provision of some friendlies. Clearly friendlies could be limited to only internal within the 1st team squad, or within any given club, by permitting Reserve and Academy team players to be included in the return to work programme.
Recovery periods. There will also be the need to be an agreement in regards to the recovery period between matches. Of course players have demonstrated that they can play every 3 or 4 days for a few weeks (4/5) but can this be sustained over 8/10 weeks? There has been mention of allowing 5 substitutions in a game to spread the amount of workload the players have to undertake in a relatively short space of time.
In terms of the Clubs, they have a number of groups of staff, Players, Coaching, Medical teams – doctors, physios, masseurs - Kit team, match-day travel and security team, Club representatives. Of course there are the Groundsmen at the training grounds and stadiums and others involved in match day operations (such dealing with the sponsors, up to and including the ball kids etc.).
Match Day Stakeholders
Match Days behind closed doors. Clearly no fans will be allowed and this will have to be managed very carefully as small groups of ill-disciplined fans turning up to wait outside stadiums may result in the club’s exclusion from the process and see their team forfeiting matches.
Other Stakeholders. We have mentioned the Clubs and their employees but there are a number of other stakeholders that need to adhere to safety criteria, for example, the Premier League Officials (Match-Day Officials and League Representatives) and of course the VAR and Goal line technology operatives. There are also all the Media/ Journalists, TV (Riggers, Lighting, Camera and Sound crews including Production and Presenting Teams). This could be restricted to 1 set for all network and media channels – e.g. set-up 1 channel on FreeView or stream it all via a live feed – Sky Sport, BT Sport, BBC and Club’s In-House media platforms. There is also the Radio coverage, National, Regional and Local press teams.
Furthermore there are also the statisticians – presumably this is or could be done by a small team or even remotely – e.g. Opta and DAZN. Police (inside and outside stadiums), hotels and their staff, cleaning staff, agents. There are also neutral paramedics at matches which could be seen as creating a pressure on NHS.
One requirement of the Charter might be that all these different groups of staff have to isolate in hotels, away from the families and friends in order to ban all physical contact with the outside world. This would be lockdown in club and stakeholder specific hotels similar to pre-season training camps abroad.
Media Rights holders
Current rights holders will be looking at procuring additional rights or if games are shown on other platforms dilution of those rights/ rebates. Currently it is more likely additional games that current rights holders do not have capacity to show will be shown on other platforms. If there is a glut of premier league games there may be less appetite /capacity to show the usual games from lower leagues and so the rights holders will have to negotiate with the Premier League/English Football League (EFL). Equally if the format changes, so for example if the promotion play offs are extended as the EFL have mooted, these games may not be expressly covered in the rights agreement so will have to be negotiated.
Sponsorship Rights holders
Clearly, there will a be an issue if a League or Club sponsor has a match-day package as part of their overall Rights package but with a bit of common sense and negotiation in the best interests of the sport and wider public, it should be anticipated that these hurdles can be overcome.
Discipline and Reassurance
With the recent good weather people are already wanting and are travelling more with the growing desire to return to normal life. Clearly the League and all its direct/ indirect members, including all stakeholders need to provide reassurance they will all abide to requirements under a possible Charter and where possible reduce the impact on public services. Again, it might all come down to testing, PPE and demonstrating that it is possible to follow proper guidelines and health/safety measures that can and will be implemented.
In addition to this ‘Duty of Care’ which can give rise to claims in negligence between players/ participants and the authorities if this is handled badly the inevitable fundamental changes brought about by the matters referred to in this note necessitate a variation to the current contractual arrangements. Those changes which may be contained in a waiver/addendum to the playing contracts will require both sides consent. Players will be guided by the PFA who collectively bargain on their behalf as well as their agents. If such amendments are not put in place there is the clear potential for future litigation if players suffer loss as a consequence of being put at risk. Any waiver/charter would have to be legally binding so as to vary the current contracts of the stakeholders, including media and the players. Given a variation cannot be imposed unilaterally issues could arise if some players refuse. Even then legally the waiver cannot exclude liability for death or personal injury caused by negligence.
If you need advice or have any queries about the contents of this article please contact the writers whose details are as follows: Nick Lewis (Partner Sports Law) (direct dial: 0203 002 5828) and Stephen Taylor Heath (Head of Sports Law) (direct dial: 0161 838 2773).
This note is correct as of 27 April 2020.
This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon, as legal advice.