Project Restart – resuming play in a pandemic

It’s been a while since our stadiums were full of avid sports fans cheering on their teams, and the only sport we’ve seen on the television in the last couple of months has been re-runs of legendary games past, but on 17 June it looks like football’s coming (back) home again.

In our series of articles and webinars, we have looked at various issues, including:

• how the sports industry has responded to COVID-19, and the issues it faced, in Blind Sided – The Sports Industry’s Response to COVID-19
• the key contractual points that professional athletes should be aware of to help them understand their rights and obligations amid the pandemic in Coronavirus, Contracts and Professional Athletes

Now, as the Premier League eyes a return to play on 17 June, we’re taking a look at the issues currently facing clubs and players as play resumes during the pandemic.

The Players

Despite the measures taken to reduce the spread of COVID-19, contracting it remains an issue, and for players who return to work, whether for training or games, physical contact is unavoidable. Unlike other workplaces that can implement social distancing and minimal contact, this just isn’t possible in a contact sport. Clearly, players are likely to be concerned about their health and safety upon their return to work.

Should a player refuse to train or play because they believe that playing would pose a serious and imminent risk to their health, they are protected by the Employment Rights Act 1996. The legislation provides that no worker should face a sanction for refusing to work in an unsafe workplace, and they are afforded protection from dismissal, disciplinary and any other detriment, for raising a health and safety issue.  

Aside from players’ contractual ability to refuse to play, players might also be concerned about whether any refusal to play could impact on their ‘commercial’ value. For example, a player’s value in the football market is largely determined by his or her performance on the pitch and if they cannot be seen playing, that value might decrease. This in turn could have an impact on that player’s future earnings.

Likewise, the revenue from any commercial endorsements is based on the value of a given player’s image and their exposure. Deciding not to return to play could therefore be detrimental to a player’s income, leaving them in the unenviable situation of them deciding between (a risk to) their health, or (a risk to) their wealth.

The Clubs

Clubs must be mindful of actions they take to resume play as they could expose themselves to various claims. For example, if a club ceases to pay players who won’t play after raising concerns about their health and safety, it could face a breach of contract claim. Furthermore, as an employer, clubs owe a duty of care to their employees, including its players. Should those employees fall seriously ill whilst in the course of their employment, it is likely that employees may bring claims in negligence against the club.

Sponsorship

Sponsorship deals and broadcasting revenues usually mean big money for clubs, and great exposure and marketing for brands. However, with the world of sport on hold, and the usual channels in a state of suspension, sponsors may find it hard to justify spending on sponsorship deals.

Sponsors may be looking at whether the force majeure clauses in the sponsorship contracts with clubs, or the doctrine of frustration, may release them from their contractual obligations, to rein in on money spent without an audience to see their marketing and products.

As we discussed in our previous articles (see here) if a contract is now impossible to perform - for example, due to COVID-19 - the doctrine of frustration may bring the contract to an end and relieve the parties of their contractual obligations. Alternatively, the parties may have already considered and included within the contract a force majeure clause which provides for certain events that would be out of their control, such as epidemics or an outbreak of disease, which would release the parties from their contractual obligations. Of course, whether a force majeure clause can be relied upon will depend on its precise wording.

Alternatively, sponsors who are keen to maintain their commercial relationships with clubs may seek to vary or renegotiate their contracts. Varying the terms of their contracts, rather than bringing them to an end altogether, might allow sponsors to temporarily reduce their spend whilst ensuring they can still reap the benefits of their sponsorship deals when football is back in action. Given that sponsors are a crucial source of revenue for clubs (and considering that the Coronavirus pandemic is set to cost Premier League clubs £1bn), it is likely that teams will be willing to consider such negotiations.

Insurance

In order to align players’ fears about returning to the pitch, clubs may look to obtain insurance to ensure their squads are covered for coronavirus (for example, to cover a player’s salary if they contract the virus and cannot play). Obtaining such insurance is likely to come with significant increases to insurance premiums though, as insurers are wary of the potential for significant pay-outs if a player tests positive.

The Financial Conduct Authority is, however, currently seeking clarity from the court on the contractual uncertainty surrounding business interruption insurance as a result of the current pandemic and, once the court’s decision has been published, confidence in the insurance market may return. For more information on the FCA’s response, see our previous article here.

Data protection

Since football players have returned to training, they have been (and continue to be) regularly tested for coronavirus as part of the Premier League’s wide-ranging health and safety protocols to ensure Project Restart’s success. In light of the potential impact a period of not playing could have on their commercial value, some players might be concerned about whether their test results can be published by their club or the league. However, under UK data protection law, personal data concerning health is ‘special category data’ which means that employers cannot disclose specific details of the individuals who have tested positive.

For further information, contact Naomi Findlay, Jessica Johnson or Thomas Barnard.