#football #sportslaw #proleague #covid19
Thursday, 2 April 2020 -The Belgian Pro League’s board of directors, which consists of the representatives of several professional clubs, has advised terminating the 2019-2020 Belgian football season with immediate effect and this subsequent to the COVID-19 pandemic. This recent turn of events would mean that the Pro League would not opt for extending the season beyond 30 June 2020. A number of remaining issues have been submitted to a working group, which will make additional recommendations. The Pro League’s general meeting, in which all its clubs are represented, will shortly make a final decision.
As a result of the COVID-19 pandemic, it is not certain if and when it will be possible to resume and finish national competitions. Whether or not the remainder of those competitions can be played with crowds is even more in doubt.
Extending the football season entails some practical problems. Some player contracts as a rule expire on 30 June 2020. As a result, some teams are in danger of losing some key players, meaning that the comparability of results and the league’s sporting balance could be harmed. The importance of these principles has been confirmed - albeit in a different context – in the Court of Justice of the European Union’s Lehtonen ruling. In addition, the full football calendar for the 2020-2021 season, with a European Championship now scheduled from 11 June 2021 to 11 July 2021, offers little flexibility for extending the current season. Also, changes to the 2020-2021 season could potentially harm the interests of the (new) rights holders. In Belgium, for instance, new rights holder Eleven Sports will monitor closely any decisions impacting its interest.
“Extending the football season entails some practical problems.”
It should be noted that UEFA offered Europe’s national football federations the opportunity to finish their football seasons after 30 June 2020. Especially the 'Big 5' leagues may want to make use of this option, under pressure from their local TV rights holders. In most of the non-"big 5" leagues, however, the appetite to extend the current season seems less.
In this respect, it is not surprising that the Pro League’s board of directors now believes that it is better to terminate the current professional football season with immediate effect immediately.
Only one game day of the Belgian Pro League’s regular season still needs to be played. After the regular season, the Play-Offs - which decide the championship and the distribution of the European competition tickets – is to be held.
If the Pro League’s general meeting follows the advice of its board of directors, which is expected, then Club Brugge would be declared the champion and would thus gain direct access to the Champions League. However, the promotion and relegation scheme and the distribution of the European competition tickets remain subject to discussion.
A working group within the Pro League is currently studying whether the Belgian cup final and the promotion in the second division can take place. These decisions will affect the arrangement related to promotion and relegation and the decision on the distribution of European competition tickets, as the cup winner directly qualifies for the Europa league.
For the time being, under Belgian law, there is no situation of definitive force majeure. The government has currently banned sports activities until 19 April 2020, although it seems likely that this period will be extended.
There is currently a temporary force majeure, which temporarily suspends the Pro League’s obligations, for example under the existing TV contract. As soon as the temporary force majeure situation is remedied, the contractual agreements must in principle be honoured with the Pro League strictly speaking being obliged to organise matches again, unless this would no longer be “possible or useful” at that time.
Rights holders may consider a claim against the Pro League for failure to comply with its obligations if the ban on sports activities would be lifted. The rights holders could also refuse to pay for the matches that have not been broadcast, or claim reimbursement (if payment has already been made in advance for matches that later turn out not to go ahead). In that case, the discussion would include whether it was "possible and useful" to finish the competition.
“Bearing in mind the risk of possible claims, the Pro League’s general meeting will probably take the final decision with the interests of all stakeholders - including the rights holders – into consideration."
The question is whether the rights holders will take this unpopular step in the time of a crisis. Bearing in mind the risk of possible claims, the Pro League’s general meeting will probably take the final decision with the interests of all stakeholders - including the rights holders – into consideration. The press release published by the Pro League seems clearly written in anticipation of this risk, since it goes to great lengths to justify the recommendation.
A Royal Decree is announced declaring the threat of COVID-19, and any measures taken by the government as a result thereof, to be force majeure by operation of law. The measure would apply, subject to limited exceptions, across the board to all sectors. By doing so, the government would introduce a legal and irrefutable presumption of force majeure, replacing for the duration of the COVID-19 crisis all other applicable rules, including contract law. Such a Royal Decree would be applauded by a number of stakeholders in the realm of sports, since it would provide additional protection against right holders and sponsors.
However, an important caveat must be made. The measure on the table is currently being debated and will either way be limited in time to coincide with the other COVID-19 measures passed in the framework of the Belgium lockdown. Although the draft Royal Decree indicates that the measure could be extended, it is at present unclear whether the legal presumption will ultimately cover the entire sporting season.
Finally, it is important to note that the force majeure rules are only of an ancillary nature and that the parties may contractually agree otherwise. This being said, even if other arrangements are made regarding the media rights, both parties are obliged to perform the contract in good faith.
“It seems as if the Pro League’s board of directors, after a careful balancing of interests, has judged that a discontinuation will be the ‘least bad’ recommendation in light of current developments.”
It is also important that the interests of all stakeholders are taken into account. Even sports events contested behind ‘closed doors’ currently seem to involve risks. In the first place, the athletes’ health must be taken into consideration. In addition, there is also the risk that people would congregate to watch matches, as was previously seen with, for example, PSG v. Dortmund.
It seems as if the Pro League’s board of directors, after a careful balancing of interests, has judged that a discontinuation will be the ‘least bad’ recommendation in light of current developments. It will be interesting to see whether the Pro League’s general meeting agrees with its board of directors’ view and if the Belgian Pro League’s solution finds resonance across Europe.
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