COVID-19 - football leagues left in legal limbo
The world of football has been turned inside out by COVID-19, leaving national leagues and football associations (NLFAs) to make a series of difficult decisions. NLFAs in France and Belgium have ended league seasons and determined final standings based on current league positions, whilst the 2019/2020 season has been cancelled for the top two Dutch leagues, with no champions, promotion or relegation.
Others, such as the German Bundesliga and South Korean K League, have recently resumed with fans absent from stadia. The Premier League (PL), England’s highest football league, indicated on 28 May that it intends to resume matches on 17 June, pending Government approval. None of the solutions are risk free and this piece examines the legal repercussions of the various options available.
Are we the champions?
One argument for ending the season and basing final league placements on current positions is that clubs would be rewarded for performance so far: the club currently in first place would be declared champions and the club(s) in automatic promotion and relegation places would move up or down a division. In the PL, this would mean that Liverpool FC, the runaway leaders, would end a 28-year wait for a first PL title, although not in the way players or fans would necessarily like. This so-called ‘points-per-game’ (PPG) system is likely to result in some clubs seeking legal recourse for the loss of opportunity to complete their matches and improve their league position.
Legal proceedings have already been initiated in France. Due to be relegated Amiens SC and Toulouse FC have filed legal actions against the Ligue de Football Professionnel (LFP) for its decision to end the French season, which Amiens SC has called ‘unjust, incoherent and groundless’. Olympique Lyonnais, who will fall just short of qualification for lucrative European cup competition, has also launched two claims, arguing that: (i) a resumption must be considered, as the LFP’s decision was based on an erroneous belief that league seasons had to be completed by 3 August; or alternatively (ii) that ending the season and applying the PPG system gives rise to unfairness. All three clubs plan to appeal to the Council of State, France’s highest administrative court, after a lower Paris court determined on 22 May that it lacked authority to rule on such matters.
Cancelling the season entirely and voiding all results is not so simple either. On 24 April, the Koninklijke Nederlandse Voetbalbond (KNVB) opted to void the Dutch season for the top two Dutch football leagues, in part due to the Dutch Government’s ban on major public events until 1 September. SC Cambuur and BV De Graafschap, who will miss out on the chance of promotion to the top Dutch division, consequently brought a case against the KNVB. A Dutch judge ruled on 14 May that the KNVB had followed procedure correctly. Top-flight FC Utrecht will finish one place below European qualification, and it has also suggested it will sue the KNVB for refusing to adjust final league places based on games played, and for failing to consider that it had a chance to qualify for Europe by winning the domestic cup final (which will now not be played).
Premier League poised
It now seems all but inevitable that the PL will opt to finish the season, a decision which may have its own complications. The 20 PL clubs resumed training following a unanimous vote on 18 May. Clubs must follow strict criteria devised in accordance with UK Government guidelines, which include regular disinfecting of pitches and equipment and twice-weekly COVID-19 tests. Another unanimous vote on 27 May permits an imminent return to contact training, including tackling and aerial duels, albeit with GPS trackers used to prevent more than 15 minutes of continuous contact between players.
Additional potential risks and challenges
Even training sessions bring risks of legal proceedings. Austrian teams recommenced training on 20 April, and videos emerged from LASK’s training sessions of players breaching the Ministry of Sport rules by adopting full physical contact. In turn, LASK alleged that surveillance cameras had been installed illegally. The Austrian Bundesliga has since initiated proceedings against LASK for possible violations of league rules.
Given the effect on the fairness of competition, PL clubs, as minority shareholders of the PL, could choose to bring a claim for unfair prejudice under s.994 of the Companies Act 2006 if breaches similar to LASK’s are discovered.
As to the COVID-19 risk, in some leagues (such as in Germany and Italy) one positive test can lead to the entire squad being quarantined for 14 days. In the PL, unless the 15-minute contact limit is exceeded, only the player/staff member who tests positive must self-isolate for seven days. Nevertheless, some footballers are concerned about the health implications of playing a sport which, by its very nature, involves close physical contact.
In addition to the health risks for themselves and their households, players could face legal action for refusing to train or play. On the other hand, they could institute legal proceedings against NLFAs, clubs, or even club doctors if they suffer serious injury during an abnormally compressed match schedule. Insurance covering injury and illness or death from COVID-19 may prove exorbitant or unobtainable. This may explain why the PL would like all players to sign a legal waiver before any matches take place. In any case, players may find it difficult to establish that they contracted COVID-19 while at work.
Different NLFAs have made different decisions but it appears no coincidence that none of the highest valued top-flight leagues in the world, with the most money riding on any decision – those of England, Germany, Italy and Spain – have decided to end or cancel the season (yet). Amid all the uncertainty, one point remains clear: whichever course of action the PL takes, it seems likely that more judges and arbitrators will be acting as referees before too long.