A Summer of Sport

29th January 2021 Sports Law

In March last year the Cheltenham festival had just taken place and Liverpool had just been knocked out of the Champions League by Atletico Madrid. Then almost overnight everything changed.

Initially everything stopped then green shoots of sport emerged with the English Premier League, England Cricket and British Boxing being amongst the first UK based organisations to resume events behind closed doors. JMW were involved in each of these resumptions through our representation of Prenetics the company that conducted the Covid testing for these organisations.

Other events followed suit including golf tournaments however some major events such as Wimbledon and the Open Golf Championships were postponed/cancelled. Some sports also did not possess the funding/infrastructure to be able to undertake a viable testing regime and were unable to get going.

Some international sports particularly the UEFA football competitions and international games were able to be concluded however other international events like the Olympics were postponed.

Limited spectators were allowed in for Premier League Football depending on the tier that the ground was situated in but that was sadly short lived upon a full lockdown being declared.

Of course sports viewers have had to watch, with some envy, sports from abroad taking place to almost full houses down under and limited crowds for American Football in the USA or a smattering of spectators at golf tournaments in the middle east.

Recent decisions in the courts particularly the Supreme Courts Ruling in the FCA test case litigation have established the Covid outbreak was indeed a Force Majeure event for insurance purposes however if an event is to be cancelled again this year that would be much harder to establish as we have sadly had a year of living with reduced liberties and restrictions.

The government on the one hand make bold forecasts for the Vaccination programme but no comfort as to spectators being allowed into major events or even participation at grass roots.

Some music festival events such as Glastonbury have already been cancelled this year so the inevitable question is will major sporting events again follow suit or will they proceed behind closed doors.

The question would be if you cannot play tennis in your local park how can you expect to attend Wimbledon. There have been questions about how Premier League Football is able to continue in a lockdown when you cannot kick a ball in a park however, the answer is that it is feasible with rigorous testing regimes, strict protocols and a tremendous amount of cooperation between the stakeholders and the governing bodies.

The capability is there for spectators to be tested and have the results stored on a secure phone App which could be scanned at point of entry. Perhaps understandably the Government do not consider testing in order to be cleared to attend a sporting event as an appropriate use of resources and the cost of a private test as a precursor to attendance may be uneconomic.

Testing is however advancing apace with traditional RT-PCR swab and laboratory testing being replaced with LAMP machine testing with significant reduced results turnaround as well as lateral flow and anti-body testing.

Whilst it could be feasible for spectators to attend sporting events even in a lockdown or tier restrictions the government appear reluctant, as a matter of policy, to appear to be giving any concession in that regard. Whilst sporting governing bodies can lobby government in relation to elite sport, spectators suffer from a lack of cohesive effective representation. Even national bodies such as England Golf seem to be pretty inert when it comes to trying to enable grass roots sport to resume. Perhaps the Government approach is correct as of course there are far more important things at the moment than a game of tennis or golf and whilst a case can be made for many current restrictions being more flexible they have to be imposed nationwide.

The headache for event organisers at the moment is whether to stick, twist or fold. If the event simply cannot proceed on financial grounds without spectators they have to fold and cancel. If a significant part of the revenue is generated by broadcasting rights they may stick and confirm the event will proceed. If the event can proceed but it being able to do so relies on the planets aligning they may confirm the event but with various caveats and contingency plans.

Events behind closed doors have relied on secure bubbles being created for participants, officials, broadcasters and the like. Exemptions on travel restrictions have also been in place for elite athletes based on rigorous testing prior to departure and arrival. The departure from the EU together with stricter travel corridor restrictions has added an extra layer of complexity to the organisation of international event.

For certain major sporting events such as boxing the earning power of the participants is affected by the amount of spectators that can be admitted and so the decision is again whether to stick, twist or fold in the hope a delay will mean an event can take place later in the year with a full crowd.

The problem is that major events are rather like the Titanic in that they cannot adapt quickly to changing circumstances. They require months and even years of planning. This is particularly the case where the venue requires preparation and the infrastructure such as outside broadcast units, grandstands etc have to be put in situ. They require the hiring of staff on a one off basis and the putting in place of local regulations such as traffic restrictions etc.

Finally there is the simple fact that major events are defined by the crowds they attract and the spectacle and therefore the gravitas of the event is directly and undeniably diminished by being staged behind closed doors.

I personally fear therefore that this Summer’s sporting calendar will follow a similar pattern to last year unless the broadcasters and organisers can make an event more feasible behind closed doors than it was last year. That is a possibility as the Broadcasters rely on content and exclusivity in relation to marquee events to drive revenues and so a lack of content or anticipation for big events can adversely affect subscriptions. It is a simple equation! Inability to attend sport in person leads to a greater desire to watch it on national and international media. The interest in an event though is directly affected by its status and sense of spectacle. The worst of both worlds is that spectators not being admitted means the events cannot take place and so the content is not there and the subscriptions go down. If the public found something else to focus their passion on and decided perhaps their sporting obsession was somewhat myopic the repercussions for the top end of professional sport could be significant and long ranging.

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Stephen Taylor Heath is a Partner and Head of Sports Law located in Manchesterin our Corporate and Commercial department

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