Force majeure in the case law of international sports tribunals

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For sports professionals and fans (whether in the stands or in front of their TVs), springtime usually means the return of several major sporting events, such as the NBA’s regular season, the Formula 1 world championship, the UEFA Champions League and Europa League knockout phase, the Six Nations rugby tournament, classic cycling races like “Milan-San Remo” or clay court tennis tournaments in places like Monte Carlo or Paris (Roland-Garros). But in this spring of 2020, the global spread of the COVID-19 pandemic and the measures taken by governments to address it have disrupted—and will continue to disrupt—these events.

Indeed, by mid-March, almost all domestic and international sports competitions across the world had been suspended, postponed or cancelled entirely. In view of the unprecedented circumstances, decisions were made to reschedule for 2021 the European and South American football (or soccer, for United States readers) championships and the Tokyo Olympic Games originally scheduled to take place this summer. Other annual sporting events that could not be postponed have been cancelled: for example, in the case of Wimbledon—where tennis is famously played on outdoor grass courts—it was deemed impracticable to hold the tournament at a moment other than in July. It has been reported, however, that Wimbledon’s organizers have secured pandemic insurance since 2003 (following the SARS virus outbreak) and will thus receive some measure of financial relief following the cancellation of this year’s tournament.

In addition to the direct economic impact in the absence of insurance for business interruptions or event cancellations, however, any decisions to suspend, postpone or cancel sports competitions can be expected to give rise to various types of disputes. Such disputes may concern the non-performance of obligations relating to ticketing or to contracts with employees, sponsors, broadcasters, etc. Parties to such disputes will likely argue that they must be released from their contractual obligations on the basis that the COVID-19 pandemic constitutes a force majeure event.

We previously published “COVID-19: Force Majeure Event?” which considered how force majeure provisions in commercial contracts governed by English law and PRC law, as well as the related common law doctrine of frustration, may be applied in the context of the COVID-19 pandemic. This note was later supplemented, inter alia, with “Force Majeure and Imprévision Under French Law,” an assessment of force majeure and the doctrine of imprévision under French law. We will now describe how force majeure has been considered and applied in sports-related disputes before major international sports tribunals, namely FIFA’s decision-making bodies, the Court of Arbitration for Sport and the Basketball Arbitral Tribunal.

 

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Source : Shearman & Sterling

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