Déjà “choo” – what could Omicron mean for the winter football season?

Once again, the coronavirus pandemic is rearing its head and threatening to deflate the winter football season. With the Africa Cup of Nations (AFCON) scheduled to start on 9 January 2022, the emergence of the Omicron variant of COVID-19 is raising all-too-familiar questions. Governments around the world are reintroducing restrictions on travel, but how will sponsors, broadcasters, football clubs, fans and governing bodies be affected?

AFCON

The European Club Association (ECA) board has recently voiced its concerns around player safety in respect of international fixtures and has engaged in a dialogue with FIFA with a view to protecting both players’ and clubs’ interests.

At the time of writing, the Confederation of African Football (CAF) has dismissed rumours that next month's AFCON could be cancelled. However, as competitive sport tries to avoid a repeat of last year’s lockdowns, postponements and consequential legal issues, the unpredictable nature of this pandemic continues to cast a shadow that all sporting stakeholders will need to take very seriously.

Premier League mid-season issues

With ‘Plan B’ of the UK Government’s ‘Covid-19 response: autumn and winter plan’ measures being introduced in England from 13 December 2021, fans must now prove they have been double-vaccinated for COVID-19 or provide a negative test result if they wish to attend sporting events with crowds of more than 10,000 people. The Government has currently stopped short of imposing a vaccine mandate for such events. However, with European nations increasing restrictions on the unvaccinated, pressure on the UK Government to do the same will mount.

The Public Health (Control of Disease) Act 1984 currently outlaws Ministers from enforcing a nation-wide vaccine mandate. In order to do so, Parliament would therefore have to pass new law. This can be a lengthy process and would be highly controversial. Ministers have circumvented the illegality of a nation-wide vaccine mandate by amending the law in order to deny access to those who are unvaccinated to care homes.

Stakeholders in the Premier League will be concerned as COVID-19 cases continue to escalate. Most recently, Tottenham Hotspur F.C. have been worst-affected. Their Europa Conference League match against Stade Rennais F.C. on 9 December was cancelled, and their 12 December game at Brighton & Hove Albion F.C. as well as their 16 December game at Leicester City F.C. have been postponed. Outbreaks have been reported at Leicester City, Aston Villa and Manchester United with the Premier League reporting 42 positive COVID-19 results in the past week. In turn, Manchester United’s match against Brighton due to be held on 18 December has also been postponed. While the Premier League has been proactive in developing protocols for such eventualities, it may not be long before large-scale sporting events are seen as a necessary area for care home style legislation.

There is mounting pressure on both the Premier League and the English Football League (EFL), with Brentford boss Thomas Frank calling for upcoming league ties to be postponed because of the rising cases. However, the Premier League released a statement on 16 December indicating its intention to continue with its current fixture schedule where safely possible. The EFL also released a statement moving to implement enhanced RED protocols introducing, among others, increased testing and further social distancing measures.

European football and implications for the wider sporting calendar

In the Portuguese top-flight, S.L. Benfica’s match against Belenenses SAD also recently hit the headlines after it was abandoned mid-way through the second half. Belenenses began the match with only nine players (including a second goalkeeper playing in an outfield position) due to a COVID-19 outbreak at the club. After losing a further three players to injury and being 7-0 down, the match was abandoned. The game serves as a stark reminder to the bodies in charge of match postponements that there can be adverse physical consequences to players’ wellbeing in not rescheduling games as well as reputational harm for league competitions. The bizarre game led to Sporting Lisbon, who sit third in the Portuguese table, remarking in a statement that "what is happening has serious implications for the credibility of this championship and the institutions that regulate it".

Elsewhere, the Beijing Winter Olympics are at risk of not only being marred by diplomatic boycotts, but also by the spread of Omicron. The New Zealand Government recently announced it would not send a diplomatic envoy to the Beijing Games citing the disease as its reason. With various other international events on the immediate horizon, including tennis’ Australian Open, beginning in January, and rugby’s Six Nations Championship beginning in February, organisers will be bracing for the impact of the new wave.

International fixtures window

Football’s governing bodies including the English FA, the ECA and FIFA will want to avoid the chaos which plagued the September international window, when Premier League clubs initially brandished a red card and refused to release players for matches being held in red-listed countries. Clubs were said to be concerned that, among other reasons, it would have serious implications for players’ health and wellbeing as they would have been required to isolate in a hotel for a 10-day period.

Although a new agreement was reached whereby fully vaccinated players were permitted to travel for international duty in red-list countries in October, the fast-moving pace of the pandemic may lead the Government to reconsider this proposal. Further, while the Government may allow players to leave the UK in order to play international matches, the same may not be said for other countries. Fans will remember the Brazil and Argentina match being abandoned five minutes after kick-off after the visiting players were accused of COVID-19 violations and Brazilian health officials ‘stormed’ the pitch.

January player transfer window

The impact of the Omicron variant on the January 2022 football transfer market will be evident in a little over 6 weeks’ time. Premier League clubs’ spending in the January 2021 window fell from £230m in January 2020 to just £70m and with the pandemic decreasing the revenues of top-tier clubs across Europe by €8.1bn over the past two seasons, the purse strings may remain tight for many in the upcoming transfer market. Premier League clubs’ gross spend of £1.1bn in the 2021 summer transfer window is 11% lower than the spend during summer 2020 (£1.3bn), which itself was a 9% drop compared to summer 2019 (£1.4bn), according to figures from Deloitte. Although this did not prevent headline moves being made across European leagues by footballing legends Lionel Messi and Cristiano Ronaldo, it remains to be seen if this downward trend will continue into the new year, particularly with the threat of further COVID-19 uncertainty on the horizon.

Damages

Whilst the specific wording, context and governing law of any contract will be key, potential legal claims for damages for breach of contract may be one consequence of the CAF’s response to Omicron, should the event be postponed, cancelled or materially different to the tournament that the footballing world is expecting.

Broadcasters’ contracts with the CAF give them the right to televise a number of live matches. If the CAF decides it is left with no reasonable alternative but to cancel or postpone the competition, broadcasters may argue that non-performance or even delayed performance is a breach of contract. Broadcasters could then claim for the losses suffered due to not being able to televise those matches, even if they did broadcast them at a later date.

Even if the tournament does (eventually) go ahead, organisers may be wary of the impact that a delayed competition, particularly one behind closed doors, may have. Despite the success of Project Restart, the Premier League has agreed to return £170m to Sky to recompense their losses for paused subscriptions in the 2019/20 season. This should serve as a stark reminder that not everyone will be considered to have played ball as far as contractual performance is concerned. Broadcasters and sponsors might well argue that Jock Stein had it right when he famously said that “football without fans is nothing”.

Renegotiation of contracts

Litigation is often a last resort. Instead, a renegotiation of contracts will often be preferable for all parties. Broadcasters, sponsors and national teams ought to look at the contracts and other obligations they have with commercial counterparties, sports bodies, governmental authorities and other stakeholders and consider where they might be renegotiable. Cash-is-king when it comes to the business of COVID-era sports and the absence of income is a particularly acute problem for smaller teams with limited funding. Broadcasters will fear a domino-effect of global sports cancellations leading to reduced advertising and subscription income.

Prudent parties will be seeking specialist advice on how material adverse change clauses, force majeure or the doctrine of frustration may play into the terms of their contracts as a result of COVID-19 and the risks and opportunities that this might create.

Comment

While the COVID-related issues facing football clubs across the globe are no longer novice, their impact continues to resurge. For example, the cancellation of Tottenham Hotspur’s recent Europa Conference League game against Rennes means that, pending a UEFA Control, Ethics and Disciplinary Body's decision, they are facing being knocked out of the competition without kicking a ball in their final game if they are deemed to have forfeited the match. The consequential impact of this is a loss of potential prize money, matchday revenue and the associated reputational damage. These are therefore issues that continue to linger throughout the sporting calendar.

It should also not be forgotten that football, like so many sports, is a game of increasingly fine margins. A single league point could make the difference between glory and failure, promotion, relegation or European-competition qualification. Hundreds of millions of pounds in sponsorship and broadcasting rights deals could also hang in the balance. While rebates between broadcasters, clubs and organisers are often negotiated, settled and deferred as parties seek to avoid disputes, they cannot be ignored. The decisions taken by governing bodies now will have an impact on the futures of all sporting stakeholders.

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