The Coronavirus pandemic has brought sport to a stand-still globally. Many competitions have been postponed, and many have been cancelled altogether. Most elite professional rugby competitions have been postponed, including the English Premiership, the Pro14, the Champions Cup, the TOP14, Super Rugby and the Six Nations. As the crisis continues, more and more tournaments and fixtures are being called into question – the July International Tours, the Rugby Championship and even the November Tests.
There are various sporting, financial and legal reasons why there is a desire to complete these competitions. On the sporting side, teams, players, coaches and fans, of course, want matches to be played, for the love of the game and for the glory of winning. Clubs and Unions want matches to be played as they form an essential part of their annual revenues and, without them, some could face financial oblivion. Legally, there are contracts in place with sponsors, broadcasters and other commercial parties that may require competitions to be completed.
And yet re-scheduling the season is a legal, regulatory and logistical nightmare. This article will consider the legal and regulatory re-scheduling problems facing both the club and international game in England and will suggest how these problems might be solved. Part I of the article will consider the English Premiership, and Part II will address the international game.
The Premiership
With the Premiership postponed and the end of the ordinary season getting ever nearer, many are wondering how, whether and if the season will ever be completed and, indeed, whether it needs to be. From a regulatory perspective, the Premiership Regulations 2019-20 do not provide explicitly for unforeseen events like a pandemic, nor for the cancellation or postponement of the season. Nonetheless, Premiership Regulation 4.1(c) allows for matches to be re-arranged by Premiership Rugby Limited (“PRL”).
As discussed in my earlier piece ‘Coronavirus & Rugby: Promotion and Relegation’, RFU Regulation 13.1.3 contains a broad power to vary, or implement, regulations to deal with matters not provided for in the RFU Regulations. This applies to the Premiership Regulations 2019-20, too, subject to Premiership Regulation 1.3, which requires consultation with the Professional Game Board before variations can be made by the RFU Council. There are, thus, broad regulatory powers available to deal with the re-scheduling issues thrown up by the Coronavirus crisis, though there remain a number of legal and regulatory difficulties, of which I consider six, below:
1. Playing Contracts
A major obstacle for re-scheduling the season is the expiry of playing contracts. Plenty of playing contracts will be due to expire at the end of the season as originally scheduled, and many players will be moving clubs. In England, contracts run from 1 July to 30 June each year. The Premiership Final was originally scheduled to take place on 20 June 2020. If the season is to be completed in full, the new date for the final will almost inevitably be after 30 June, given the current Government social-distancing measures. As such, some players will be out of contract before the season is finished.
These out-of-contract players will be under no obligation to play for their current club after 30 June, and the club will be under no obligation to pay them. Worse still, some players will be under contract with different, perhaps even rival, clubs. Though English law will not compel employees to work against their will (s.236 of the Trade Union and Labour Relations (Consolidation) Act 1992), a player moving to a new club might feel obliged to turn out for his new side – even against his former club. This would be unsatisfactory from a sporting integrity perspective, as teams’ relative strength and competitiveness could change before the season is completed. Bristol Bears, for example, would be able to call upon the sizeable talent of Kyle Sinckler (at the expense of Harlequins) and Semi Radradra – which would notably improve their playing resources and could potentially distort the 2019-20 league table. Preserving the status quo is the best way to ensure the competition’s sporting integrity.
But how can this be done? Playing contracts are a legal agreement between clubs and players. Any unilateral attempt to delay player transfers, or extend contracts, by the RFU, World Rugby, or PRL would be invalid. The extension, or the delay to the commencement, of a contract’s term must be agreed between the parties to that contract for it to have legal effect.
Of course, persuading a player who is out of contract after 30 June and has not yet signed for another club to extend their contract for another month (or more, as necessary) ought not to be too difficult. The main legal difficulties will arise where a player has already signed elsewhere.
The best solution would be to procure an agreement between all clubs, and all players, to move the start/end dates of contracts to suit the new season dates. But this is not as easy as it sounds. Firstly, organising a meeting between all professional clubs and all player unions world-over would be difficult. Secondly, not every league will necessarily resume – some may be cancelled. Why would clubs in cancelled leagues wish to continue paying players who would otherwise be out of contract? Thirdly, players may have signed new contracts that were to give them a significant pay-rise and thus may be reluctant to reduce the length of such lucrative deals. Fourthly, clubs will not have budgeted for such extended contracts. Though the season may only be extended by a month, this could significantly increase a club’s wage bill if, for example, high-earning players were to be leaving. Therefore, clubs may be reluctant to agree to the extension.
In any event, even if a high-level agreement could be reached between key stakeholders, each individual contract would still need to be varied – each individual club and player would need to agree to changing the contract’s term. It may well be that the issue can only be resolved on a purely individual basis.
In England, to encourage clubs to delay transfers, the RFU could implement a new regulation to prohibit clubs fielding new players during the remainder of the 2019-2020 season. However, this would disproportionately prejudice those clubs whose out-of-contract players are moving abroad and there would need to be an exception for clubs signing genuine injury replacements.
The easiest solution to this conundrum would simply be to end the season on or before 30 June, such that the contractual questions would not arise. This could be achieved by cancelling the season altogether or by playing out some sort of abridged version. Cancellation would entail potentially devastating financial consequences for clubs as well as potential legal difficulties (see below) and, thus, a shortened format would likely be preferred – though this, too, might give rise to integrity concerns.
Alternatively, players could simply be allowed to transfer, and clubs complete the 2019-2020 season with their 2020-2021 squads. This, though, would be hugely questionable from an integrity perspective. The clubs have played the season so far on the mutual assumption that the players they had under contract would play for them during the whole 2019-2020 season – and, importantly, that their players would not play against them until at least the 2020-2021 season. For this to change would damage the sporting integrity of the Premiership.
That said, given what has taken place during this season to date – the points deduction and subsequent automatic relegation of Saracens – it might be argued that the competition’s integrity has also been seriously impaired such that this ought to be of low priority in such challenging times. That is a matter for debate.
2. The Salary Cap Regulations
Another consequence of extending/delaying contracts beyond 30 June is the complications this would have for the Premiership Rugby Salary Cap Regulations. Although clubs may have reduced players’ wages during this difficult period, it may be that extending existing contracts would increase clubs’ spending for the Salary Cap Year 2020-2021, which starts on 1 July 2020, increasing the risk of clubs breaching the Regulations.
An emergency regulation could be drafted to allow clubs dispensation where they have extended contracts to retain players until the 2019-2020 season is completed. This would need to be tightly defined to ensure that it does not open the Regulations to exploitation. The starting point would need to be that, for dispensation to be available, any sum paid to these players is at no higher rate than during the Salary Cap Year 2019-2020.
Of course, cancelling the 2019-2020 season or ending it before 30 June 2020 would avoid such issues – as would allowing players to transfer as normal, despite the 2019-2020 season continuing.
3. RFU Player Registration Regulations
If the 2019-2020 Premiership season is extended, and players’ contracts are not varied to alter the 30 June end date, RFU Regulation 14 and Premiership Regulation 3.3 on player registration and eligibility will become vitally important.
Premiership Regulation 3.3(a) states:
A Club may only play or select as a replacement or substitute in a Match Players who hold Effective Registration for that Club or are an England Academy Player contracted to that Club or its Academy
“Effective Registration” is defined in Premiership Regulation 1.1 as registration in accordance with RFU Regulation 14 (Registration of Adult Male Players).
Crucially, under RFU Regulation 14.3.3, clubs must apply for a player to be “Effectively Registered” before the “Transfer Deadline”. In the Premiership, this year, the Transfer Deadline is 17 April 2020 (RFU Regulation 14.1.4(c)). As such, if the current season continued after 30 June, although some players’ current contracts would expire, and new ones would commence, they could not become “Effectively Registered” under RFU Regulation 14 and, therefore, would not be eligible for selection by their new Premiership club. Although they might be contracted to their new club, they would not be able to play.
These rules aim to maintain the integrity of the RFU’s competitions, by placing a time-limit on mid-season transfers. However, they may be a kick in the teeth for those clubs seeking to make the most of the Coronavirus crisis by using their incoming talent. That said, if contracts are not varied, players would still ‘transfer’ formally (i.e. their employer would change) but would be unable to take the field. This would deprive their former club of their services, though the new club would not be able to benefit from them, either. This would not be ideal from an integrity perspective but is perhaps easier to stomach than players fully switching sides overnight.
This is likely to cause much debate between clubs, PRL and the RFU, as they wrangle for players’ services during such a crucial time. Players may be caught in the cross-fire, so will need the RPA to look out for their interests here, in particular. Do players want to be forced to sit out the rest of the season?
Nonetheless, the RFU Council has the power to vary the Transfer Deadline (as regards the Premiership) under Premiership Regulation 1.3, though such a change would first need to be considered by the Professional Game Board. It is clear from Premiership Regulation 1.7 that this power includes the power to vary the application of the RFU Regulations to the Premiership. Moving or suspending the transfer deadline would allow players whose new contracts begin on 1 July 2020 to play for their new clubs – if this is what the RFU wants to happen. This would be a blow to sporting integrity but, as aforementioned, may be necessary from a financial perspective – particularly, if clubs are unable to compete without all contracted players being eligible for selection.
Alternatively, the cancellation of the current season would avoid all such complications.
4. Player Welfare Agreements
A further complication comes from the agreements in place to protect the welfare of players. In 2018, it was announced that an agreement had been reached between PRL, the RFU and the Rugby Players Association regarding the structure of the season in England. This includes provisions that there shall be:
A minimum of 12 weeks between the Gallagher Premiership Rugby Final and Round 1 of the following Gallagher Premiership Rugby season; and
A mandatory five-week post-season rest for all players which includes two weeks’ absolute rest and three weeks’ active rest
The post-season rest rules – if not also the 12-week break – are incorporated into players’ contracts and, thus, any breach of these provisions will amount to a breach of contract. It may also be that players would be ineligible for selection in Premiership matches, if these rules have not been complied with (Premiership Regulation 3.3(b)). If the 2019-2020 season is extended in any way, the 12-week rule cannot be complied with, unless the start of the 2020-2021 season is delayed. If the 2019-20 season is to be re-scheduled, PRL and the RFU must carefully consider the amount of time before the start of the 2020-2021 season.
This is particularly crucial because 2021 is a Lions Tour year. This means that Lions players in the Premiership could – if the two seasons run into one another – play continuously from May/June 2020 until August 2021. Research suggests that 35 or fewer match involvements in one season reduces the risk of injury. Playing two seasons back-to-back would inevitably see players (particularly those on the Lions Tour) involved in more than 35 matches without an extended break, thus increasing their chances of injury. A break must be preserved, although the 12-week rule may need to be varied – after all, the players will have had a period of extended rest because of the Coronavirus ‘lockdown’.
It might be possible to compress next season to give administrators more time to work with by eliminating the Premiership Rugby Cup competition, but that also serves a purpose under the player welfare agreement – it provides “rest weeks for players with the most match time”.
Matters may become more complicated still if international fixtures are also re-scheduled (see Part II). There are Six Nations fixtures un-played, and the summer tours are still scheduled for July 2020. Re-arranging the domestic season alongside international fixtures whilst ensuring that the player welfare agreement is complied with and that the integrity of both sets of matches is preserved will be an incredibly difficult task. The Professional Game Panel, created to oversee this agreement, is going to be thoroughly tested.
5. Commercial Contracts
Of further concern for both clubs and PRL, are their contractual obligations to commercial parties such as broadcasters, sponsors, fans, match-day contractors and suppliers. These commercial parties all have an interest in the season being completed and, if it is not, clubs/PRL may be placed in breach of contract. For example, PRL’s contract with BT Sport will require PRL to stage matches for BT Sport to broadcast. If the rest of the season is cancelled, this obligation cannot be fulfilled, and the contract will (prima facie) be breached. A breach of contract gives a right to claim damages.
However, many such contracts are likely to include a ‘force majeure’ clause. This type of clause releases parties from their legal obligations when certain extraneous and unforeseen events occur, for a defined period – or permanently. They allow parties to allocate the risk of such events unfolding and typically oust the common law doctrine of frustration.
‘Force majeure’ has no autonomous meaning in English law and, thus, the events allowing such a clause to be triggered must be specifically defined in the contract. Common force majeure events include acts of God, fire, earthquakes, floods, war, riot, strikes and terrorism. Outbreak of disease or acts of government are also plausible force majeure events but what is crucial is the construction of the precise clause/contract in question. As such, whether clubs/PRL could escape their obligations to stage the remainder of the Premiership will very much depend on the content of each commercial agreement. If such a clause is triggered, it is likely that PRL and the clubs will not receive the full amount of money bargained for under the agreement, and may even have to pay a sum back.
If a contract does not contain a force majeure clause, the infringing party might seek to rely on the doctrine of frustration. As explained in my earlier article ‘Coronavirus & Rugby: Pay Cuts and Playing Contracts’, the doctrine of frustration allows parties to be discharged from their contractual obligations where these become impossible to perform due to an unforeseen event not caused by either party, or where the event makes performance so radically different that the obligations are effectively incapable of being performed (Davis Contractors v Fareham UDC).
However, impossibility (or incapability) is a high threshold. The clubs/PRL would have to show that it was genuinely impossible for them to comply with their contractual obligations by virtue of the Coronavirus pandemic, or the resulting Government actions. It is a somewhat uncertain area of law and, thus, clubs/PRL would be taking a risk in relying upon the doctrine to allow them to take drastic action. Indeed, if frustration can be established, the Law Reform (Frustrated Contracts) Act 1943 allows for financial claims to be made, to ensure that there is no unjust enrichment. This might oblige PRL, or the clubs, to give back some commercial revenue already received.
The most pragmatic solution to these commercial difficulties will be re-negotiation. PRL and its clubs will need to (virtually) sit down with their commercial partners and try to agree a way forward – perhaps by deferring contracts, or by agreeing to end them early. If the season can be re-scheduled, deferral will likely be the easiest solution, but this may not be possible in every case.
6. Champions Cup Qualification
Lastly, the qualification rules for the 2020-2021 Heineken Champions Cup state that the “six highest-ranked clubs based on their final finishing positions” in the Premiership shall qualify. This gives another incentive for the season to be completed. If the Premiership season cannot be completed, how will Champions Cup qualification be determined?
The same question is being posed in relation to the Pro14 and TOP14 – the other contributing leagues. Indeed, if the Champions Cup (and Challenge Cup) cannot be completed this year, the final qualifying place – ordinarily determined based on Champions Cup and Challenge Cup performance – will also be undecided.
The leagues could look to the approach taken by the RFU to their competitions below Premiership level, to determine promotion and relegation. A ‘best playing record’ formula was adopted, taking the average number of league points earned at home and away matches (separately) to date and multiplying these by the number of home and away matches remaining. This produced a final league table. This could be used to determine Champions Cup qualification even if the season cannot be finished – although, given that fewer than 60% of Premiership fixtures have been completed, this approach might well be questioned. Indeed, as I have previously argued, the outcome of sports competitions should be determined on the field and not in the boardroom.
Conclusion
The re-scheduling of the 2019-2020 Premiership season is a potential legal and regulatory minefield. Great care will need to be taken in ensuring that all contractual obligations are managed, regulatory processes are complied with, and the competition’s integrity retained. The Rugby Players Association will play an essential part in safeguarding the players’ interests and it is hoped that it will do so firmly. Issues not discussed here that particularly concern the players include the duty of care owed to them by their clubs, and the measures that will need to be taken to ensure that the risks of contracting the Coronavirus are properly mitigated.
As identified throughout, the ‘easy’ solution from a regulatory perspective would be to end the season on or before 30 June 2020. However, with the great financial, and possibly legal, pressures on clubs, and with the Champions Cup, Challenge Cup and Premiership Rugby Cup also to be fitted in, it is not so straightforward. Compromise will inevitably be required.
Part II can now be read here.