Portuguese sports lawyer João Lobão casts his legal eye over the current coronavirus crisis which is engulfing sport.
Covid-19 has been declared a public health emergency of international concern by the World Health Organization and continues to cause – in addition to the heavy and dramatic health consequences to those infected – serious and critical changes to the sporting world as we know it.
National and international competitions across all sports and geographies have been suspended and all of us are stationary whilst trying to understand when, how and under what conditions will we be abletoreturnto“oldhabits”,suchasasimple journey to the countryside to see old relatives or attend a football match with friends.
Today, such common habits appear unlikely to be possible in upcoming months, begging the question – in what conditions will we be able to proceed with our normal day-to-day life.
On reflection, we can understand the costs and losses behind the suspension of sports events. These range from direct ticketing revenue and tv/media rights to sponsorship deals, as well as the underlying value of the individual members of a team which will also be impacted by the financial conjuncture of each club. Additionally, the clarification of each competition’s rules under this unprecedented situation (e.g. which teams are promoted/relegated, who is awarded a title, etc) will require attention, especially if a longer quarantine period is needed.
The World Health Organization [WHO] stated that “people can catch COVID-19 from others who have the virus. The disease can spread from person to person through small droplets from the nose or mouth which are spread when a person with COVID-19 coughs or exhales. These droplets land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose or mouth. People can also catch COVID-19 if they breathe in droplets from a person with COVID-19 who coughs out or exhales droplets. This is why it is important to stay more than 1 meter (3 feet) away from a person who is sick”1. This information has particular relevance when assessing the reasons behind any suspension or cancelation of national and international sports events.
The WHO believes that the dissemination of the disease can happen through air and therefore the imminent risk is a reality. It is impossible to take any measure to stop the Covid-19 other than simply avoid any social contact. As a result, these circumstances are meaningfully different than what the Royal Moroccan Federation of Football (FRMF) faced in 2015 in relation to Ebola virus2 concerns, when it was not allowed to postpone the African Cup of Nations tournament.
In 2015, the Royal Moroccan Federation of Football stated that it was difficult to organise the African Cup of Nations due to the Ebola virus threat and that the risk of contagion to fans and players would allow it to invoke the force majeure provision of its arrangement to host the tournament. 3 We have learn from CAS 2018/A/5779 that “(…)the legal concept of force majeure is widely and internationally accepted and, in particular, is valid and applicable under Swiss law. As a general rule it could be said that, under some extraordinary and limited circumstances, a party that does not fulfill a contractual obligation could be excused for its breach if it can prove that the breach is due to the occurrence of an event or an impediment that is not only beyond its control (and that it cannot avoid to get over) but also that it could not have been reasonably expected to have taken into account when it assumed the relevant obligation that was breached. Force majeure takes place in the presence of extraordinary and unforeseeable events that occur beyond the sphere of activity of the person concerned and that impose themselves on him/her in an irresistible manner.
Force majeure implies an objective (rather than a personal) impediment, beyond the control of the “obliged party”, that is unforeseeable, that cannot be resisted, and that renders the performance of the obligation impossible. However, the conditions for the occurrence of force majeure are to be narrowly interpreted, since force majeure introduces an exception to the binding force of an obligation”. The bottom line is that, only when it is considered impossible for a party to fulfill its obligations, can a valid force majeure situation take place.
In the situation of the Royal Moroccan Federation of Football in 2015, the event turned out to be “difficult”, not “impossible”, and therefore the RMFF was deemed too not facing a force majeure situation.
Considering what Europe, and the World, have been facing in recent weeks, it is impossible for all parties at this stage – clubs, national leagues and even UEFA – to organise any public event without being at serious risk of severe contamination of the attendants. As such, national Governments have already forbidden such events from taking place, claiming that such events would pose an imminent risk of a wider spread of the disease. The grounds for force majeure, in this situation, appear valid.
On the other hand, one may claim that force majeure is clearly defined in most contracts, and that a “pandemic” is not included in the strict shortlist of events4 that would negate responsibility to a party. Nonetheless, even if a pandemic is not expressly included in such a shortlist, the reality is that the unprecedented measures being implemented by national Governments will open the door for any defaulting party to claim no responsibility.
The Swiss code of Obligations synthesises in Art. 119 that “an obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor”. Hence, again the term “impossible” is a crucial condition to understand the impact of any compensation. If it is undisputed that is “impossible” to perform an obligation, then compensation shall usually be limited to amounts already exchanged.
Regarding the UEFA Euro 2020, a closer look to the Regulations of the UEFA European Football Championship, and its Art. 69 [“Unforeseen circumstance”]5, shows that the decision invoke force majeure to such event relays on the UEFA Emergency Panel any in ultima ratio in the sole discretion of the President of UEFA. As such, the President of UEFA has the ultimate responsibility to act in accordance to recent events.
It is widely agreed that a decision is to postpone the Euro 2020 competition in light of recent events will be the prudent response. Although it is believed that the Covid-19 situation may be controlled within 2/3 months, and therefore not being impossible to organise the event on time, it could be reckless to facilitate and encourage such a degree of social interaction following such a devastating epidemic.
In relation to the UEFA Europa League and the UEFA Champions League, both competitions have in their regulations the same provision as Art 69 of6 UEFA European Football Championship. Nevertheless, the non-completion of these competitions for the 2019-20 season appears to fall under the force majeure provision7 , as such competitions need to be finalised by 30th June 2020, which is not practically possible due to ongoing restrictions by national Governments. Even if remaining games were to be played at closed-doors, both Europa League and Champions League are international competitions which require teams and staff to travel cross-borders, as well as UEFA personnel, match organisation officials, TV producers and media crews, etc. Such travelling would most likely be rejected by national Governments.
In assessing the current situation, it is possible to assume that the present “pandemic” may set the basis for a force majeure event which can protect UEFA in the event of the non-realisation of the remaining Europe Competitions matches this season. However, another issue arises in determining which clubs are eligible to play European Competitions in 2020/2021 season in the event national championships are not completed.
It is clear and indisputable that UEFA shall not directly interfere on the decisions taken by the National Associations8 and Leagues. However, such decisions will have a direct impact on UEFA competitions and therefore UEFA should be listened to. The fairness and integrity of sport is in ultima ratio the common goal for all the entities governing sports. With this in mind, UEFA cannot ignore that many teams which participated in the 2019-20 season of the UEFA Champions League and the UEFA Europa League, would not qualify to these competitions in the 2020-21 season if their National League was deemed finished today, with current standings becoming the final standings.
If National Leagues can not be concluded, UEFA will be faced with an unprecedented challenge, and may have just two potential courses of action. Either it considers last season’s standings for UEFA classification purposes, and ignores the ‘incomplete’ 2019-20 season for relegation or champion title attribution; or, it considers the National Leagues’ standings at the time of their deemed ‘completion’, as well as the European standings for the 2020-21 seasons of the European Club events, title attribution and relegation places. The former would ignore clubs that have done well and are well positioned to date in their National Leagues, whilst the latter would ignore clubs that may have started their season less well an opportunity to rightfully gain a place in the European competitions.
As an example, Tottenham Hotspur Football Club9, Società Sportiva Calcio Napoli10, Valencia Club de Fútbol11, Club Atlético Madrid12, Koninklijke Racing Club Genk13 which played on the UEFA Champions League this season are today below the Champions League access positions and, if the national decision is to deem this season’s competition invalid, and use the last year standings to decide who are eligible teams for UEFA, these clubs would be eligible for European competitions. Under this scenario, granting access to such clubs would undoubtedly harm the fairness and integrity of the 2020-21 Champions League edition, which gives ground for UEFA to have a say in such decision making process.
No decision will be perfect in this likely eventuality, however sport authorities face a choice in the event that remaining National League matches are cancelled. Either (i) ignore the almost 70% disputed matches in National Leagues relying on the uncertainty of the potential results of the 30% of matches remaining and their potential impact on current standings; or, (ii) choose to value the investments made to date, as well as results and effort of clubs and players alike, and validate current standings as final standings ( as occurred on the Fudbalski Klub Partizan title in 199914 and in a most recent case The Polish Handball Association decided to finish today the national league and award this year title considering the current standings)15.
Lisbon, 24th March 2020.
João Lobão is Vice-President of Portuguese Sports Law Association and was previosuly Legal Adviser for Sporting Clube de Portugal – Futebol, SAD (2015 – 2019), Head of the Sports Law Department in Portugal of Gomez Acebo & Pombo (2014-2015) and worked for the Legal Department of the Portuguese Player’s Union (2012-2014). – jlobao@lspadvogados.com
References
1 https://www.who.int/news-room/q-a-detail/q-a-coronaviruses
2 Fédération Royale Marocaine de Football in v. Confédération Africaine de Football, Award of 17 November 2015 and see N. (2017) CAS 2015/A/3920 Fédération Royale Marocaine de Football v. Confédération Africaine de Football, Award of 17 November 2015.
3 On the same tone we see “Arbitration CAS 2015/A/3909 Club Atlético Mineiro v. FC Dynamo Kyiv, award of 9 October 2015” considering that “The legal concept of force majeure is widely and internationally accepted and is valid and applicable under Swiss law. It also forms a well-established doctrine in CAS jurisdiction. Specifically, under CAS jurisprudence force majeure implies an objective (rather than a personal) impediment, beyond the control of the “obliged party”, that is unforeseeable, cannot be resisted and which renders the performance of the obligation impossible. Notwithstanding, CAS jurisprudence has also warned that the conditions for the occurrence of force majeure are to be narrowly interpreted, since force majeure introduces an exception to the binding force of an obligation.”
4 On a common contract it shall be expected to be included in a simple force majeure clause events such as strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
5 Art. 69oRegulations of the UEFA European Football Championship says that “Any matters not provided for in these regulations, such as cases of force majeure, will be decided by the UEFA Emergency Panel or, if not possible due to time constraints, by the UEFA President or, in his absence, by the UEFA General Secretary. Such decisions are final.”
6 Art. 80 on the Regulations of the UEFA Europa League 2018-21 Cycle and Art. 83 on the UEFA Champions League Regulations 2019
7 UEFA has formally taken the decision on 23th March 2020 to postpone the club finals originally scheduled for May 2020. No decision has yet been made on rearranged dates.
8 Art. 51 bis Par 4 of the UEFA Statutes
9 Currently in 8o Position in the Premier League
10Currently in 6o Position in the Serie A
11Currently in 7o position in La Liga
12Currently in 6o Position in La Liga
13 Currently in 7o Position in the Belgian Pro League
14 In 1999 UEFA – in the absence of a National Football Association – decided to give the national champion title to Partizan of Belgrade who led the championship when it was suspended due to the Balkan war.
15 The Polish Handball League 2019/2020 was on 23rd March 2020 declared to be concluded due Covid-19 pandemia and the national champions title was awarded according to the current standing, also it was decided that no relegation will occur this year.
