The initial months of year 2020 have seen the world grapple with a pandemic of unprecedented proportions which has brought the world order to a screeching halt. The advent of the coronavirus disease (hereinafter referred to as COVID-19) has had debilitating effects on the political, socio-economic, environmental and cultural foundations across the world.The World Health Organization on 11th March 2020 declared COVID-19 as a pandemic. 1
On 24th March 2020, the Prime Minister of India, Mr. Narendra Modi announced 2 a 21-day nation-wide lockdown as a preventive measure to limit community transmission of COVID-19 in India.On the same datethe Ministry of Home Affairs issued several guidelines 3 for enforcement of the nation-wide lockdown and recommended measures 4 to prevent the spread of COVID-19 across the country.Such measures included barring all social, political, sport, entertainment, academic and cultural activities for the duration of the nation-wide lockdown.
The football industry like any other industry has also suffered due to the outbreak of COVID-19. Major football leagues such as the English Premier League, Serie A 5, Bundesliga 6 and La Liga 7 have been suspended due to the COVID-19 pandemic.
The English Premier League has issued a joint statement 8 along with the Football Association [FA]stating that all professional football in England shall be postponed till 30th of April 2020 and that the limit of the 2019/2020 season for professional football in England shall be extended indefinitely.Further, the FA has decided 9 to bring the 2019/2020 seasonsat certain levels in the English football system to an endand expunge their correspondingresults after taking into consideration the challenging circumstances for English football andthe financial impact during the uncertain period of the COVID-19 pandemic.
Indian football has also been affected by the COVID-19 pandemic. While the Indian Super League [ISL] was able to scrape through and conclude the 2019-2020 season, by playing the final behind closed doors 10, the 2019-2020 season of the I-League, which is the other co-existing top tier of Indian professional football, has been suspended 11 along with all other football related activity by the All India Football Federation [AIFF], the governing body for football in India. The decisions taken by AIFF to suspend all football related activities are bound to have several long-term legal and economic implications.
Suspension or cancellation of football related activities due to the COVID-19 pandemic may lead to litigation en masseincluding claims made by broadcasters against the league and/or clubs for failing to conduct the matches, which the broadcasters have paid for, disputes between fans and clubs regarding tickets (especially season tickets) which have already been bought, disputes between clubs / leagues and their insurance providers and claims made by clubs against the authorities vis-à-vis decisions taken regarding cancellation of seasons and expunging of results.
There are several questions regardingstability of the contracts between clubs and players and the impact of the suspensions / cancellations, made on account of the COVID-19 pandemic, on such contracts. Perhaps the biggest question is what ramifications will the doctrine of ‘force majeure’ have on contracts between clubs and players?
Article 27 of the FIFA Regulations on the Status & Transfer of Players [FIFA RSTP] states that all matters pertaining to force majeure shall be dealt with by the FIFA Council. Accordingly, the Bureau of the FIFA Council had formed 12 a FIFA Confederations Working Group (Working Group) in order to assess the need for amendments or temporary dispensations to the FIFA RSTP in order to protect contracts for both players and clubs and adjusting player registration periods.
Following the mandate of the Bureau, the Working Group, on 07.04.2020, issued guidelines titled “FIFA COVID-19 Football Regulatory Issues” 13 (hereinafter referred to as “FIFA COVID-19 Guidelines”) which addressed, among many of the issues discussed in its meetings, three core matters:
Therefore, from an Indian perspective,there are three main questions which we seek to touch upon:
‘Force-Majeure’ is derived from the French language and literally translated means ‘a superior force’. A ‘force-majeure’ can be defined as “an event or effect that can be neither anticipated nor controlled; esp., an unexpected event that prevents someone from doing or completing something that he or she had agreed or officially planned to do. The term includes both, acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes and wars).” 14
In other words, ‘force majeure’ refers to “events outside the control of the parties and which prevent one or both of the parties from performing their contractual obligations” 15.
The CAS has dealt with the issue of Force Majeure in several cases.
One of the first cases where CAS considered the issue of ‘force majeure’ was PAOK FC v. Union des Associations Européennes de Football (UEFA) 16 wherein the club in question, PAOK FC, claimed relief for being unfairly banned from UEFA competitions due to alleged delays caused by it in submission of the requisite club license issued by its national association.The club hadclaimed that the inordinate delay caused by its national association in granting the requisite license for participation in UEFA competitions was a case of ‘force majeure’ since the delay was caused solely by the national associationand the same was out of the club’s control. CAS laid down the essential ingredients of ‘force majeure’ and proceeded to refute the club’s contentions by adjudicating that the delay caused in the licensing process was caused solely due to the club’s negligence. The CAS held the following regarding ‘force majeure’:
In Club Atlético Mineiro v. FC Dynamo Kyiv 17 , one of the clubs in question had contended that the freezing of its bank accounts by the respective state authorities, as part of official proceedings pertaining to tax related debts, which consequently prevented the club from making payments under a valid transfer agreement constituted a ‘force majeure’ event. The CAS reiterated the ruling in the PAOK case regarding ‘force majeure’ and refuted the club’s contention by stating that financially coercive measures adopted by a state court to enforce tax debts incurred by a party cannot be considered as ‘force majeure’ and that the financial difficulties incurred by the club in question were due to the club’s ownnegligent and voluntary behaviour.
Such interpretation of a ‘force majeure’ event has been applied consistently by CAS in FC Dnipro v. Football Federation of Ukraine (FFU) 18 and Zamalek Sporting Club v. Fédération Internationale de Football Association (FIFA) 19.
Therefore, as per CAS jurisprudence it is evident that “force majeure”: (a) implies an objective (rather than a personal) impediment (b) beyond the control of the “obliged party” (c) that is unforeseeable (d) that cannot be resisted and (d) that renders the performance of the obligation impossible. As a result, upon bare construction of the principle as elucidated by CAS, it can be reasonably stated that the suspension of the on-going I-League season in India on account of the COVID-19 pandemic shall principallyamount to a ‘force majeure’ event since the pandemic and the ensuing suspension of the I-League season 2019/2020 embody objective impediments in the form of unforeseen events beyond the control of the parties which cannot be resisted since there is no cure or vaccination for the same and which have rendered performance of majority of the obligations impossible.
But what does that mean vis-à-vis the contractual relationship between the I-League clubs and players? Are the clubs and players excused from performing their obligations under their contracts?
Two issues which Indian clubs are likely to face are issues pertaining to release of remuneration to the players and support staff and secondly the larger concern of whether the FIFA COVID-19 Guidelines (based on FIFA Working Group’s interpretation of the COVID-19 pandemic as a force majeure event) on player contracts affected by the pandemic, will be enforceable in India.
In order to address these concerns, as a starting point, we have sought to look at how CAS has looked at Force Majeure in similar situations:
It is evident from a perusal of the above-stated jurisprudence that CAS has been diverse in its application of the ‘force majeure’ doctrine.
As has been stated above, the I-League season in India was initially suspended with the intention of completing the season laterwhen the COVID-19 pandemic is under control. However, the AIFF League Committee 23 has, in its meeting on 18th April 2020, deliberated upon the impact of the COVID-19 outbreak in India andprovided its recommendations to the AIFF Executive Committee whereby it has recognized that the COVID-19 crisis is a force majeure event and has recommended the conclusion of the 2019/2020 I-League season with Mohun Bagan being declared as the I-League champions.
Considering the CAS jurisprudence on force majeure, it is evident that the players under contract in the I-League cannot be expected to perform their obligation of playing for their respective clubs for the period the season remains suspended. However, considering CAS’ position that a‘force majeure’ event must specifically prevent performance of obligations under contract, it is unlikely that CAS shall condone players’ failure to perform those obligations which are not specifically prevented by the COVID-19 pandemic and the temporary suspension of the I-League season such as promotional / sponsorship obligations on social media, maintaining a certain standard of fitness during the league suspension (during self-isolation at home or during quarantine)or abstaining from activities which are likely to cause injury / illness.
Similarly, in light of CAS’ stance in the FC Metallurg decision 24, it is unlikely that the CAS shall condone a club’s failure in paying the players’ wages / salaries during the temporary suspension of the I-League season unless the clubs are able to demonstrate how the temporary suspension of the I-League specifically prevented them from performing the obligation of paying the players’ wages / salaries.
The situation would change substantially, if AIFF and its affiliated members’cancelled and brought the current I-League season to an end and expunged the results of the season. Upon cancellation of the 2019/2020 I-League season, all the requirements for constitution of a ‘force majeure’ event under CAS jurisprudence shall be satisfied and the player contract shall become impossible to perform for both parties i.e. the player as well as the club.
Players under contract would not be obligated to play for their respective clubsfor the remainder of the league season 2019/2020 upon cancellation of the season. Furthermore, in line with the CAS decision in the Alexandria Union Club case 25, clubs would not be obliged to fulfil their obligations (such as payment of players’salaries / wages) from the date of the occurrence of the force majeure event i.e. cancellation of the I-League season 2019/2020 (which could start as early as the day of the nation-wide lockdown), as it could be reasonably pleaded by the clubs that the cancellation of the said season would specifically frustrate the contract and make it impossible for them to pay the players for the portion of the season which has been cancelled.
CAS may also take the duration and the object of the I-League player contracts into consideration while deciding cases of termination and compensation. If the duration of a player contract is for multiple years i.e. longer than the period of season 2019/2020, termination of such a contract by a party citing cancellation of the 2019/2020 season as a ‘force majeure’ event,is likely tobe treated as ‘termination without just cause’ by CAS.Unless such a party is able to demonstrate how cancellation of the 2019/2020 season due to the COVID-19 pandemic specifically prevented it from fulfilling its obligations for the remainder of the term (seasons) of the contract, such party is likely to be held liable to pay damages to the party suffering the breach.
The Ministry of Finance (Government of India) has,vide an Office Memorandum, clarified 26 that the COVID-19 pandemic shall be considered as a ‘natural calamity’ and that any disruption caused by the COVID-19 pandemic shall fall under the respective ‘force majeure’ clauses in the procurement manuals. While the clarification issued by the Ministry of Finance may not be universally applicable as law, it still serves as a guiding tool regarding the perception of the COVID-19 pandemic among the official authorities in India.
Most of the player contracts in the ISL and I-League contain a standard form force majeure clause. One such example is:
Evidently a ‘force-majeure’ event, as provided for in standard form player contracts in India, generally includes natural events such as ‘Act of God’ which may be extended to include a ‘pandemic’ or an ‘epidemic’. An ‘epidemic’ has been defined 27 as “spreading widely, generally prevailing, affecting great numbers”. An epidemic disease is one of which “the cause acts upon a large number at the same time by reason of its wide diffusion”.
No legal definition of an “epidemic” exists in India since India relies on a colonial era piece of legislation, the Epidemic Diseases Act of 1897, to deal with the issue of disease outbreaks / epidemics. Pertinently, the Epidemic Diseases Act, 1897 does not define a ‘disease’ let alone an ‘epidemic’. For issuing COVID-19 guidelines, the Central Government in India has relied on the Disaster Management Act, 2005 which defines 28 a “disaster” as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”.
"Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract it is governed by Chapter-III dealing with contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Indian Contract Act 29 .
Section 32 of the Indian Contract Act [ICA] provides for “Enforcement of Contracts contingent on an eventhappening”.Section 32 of the ICA deals with contingent contracts and stipulates that contingent contracts based on the happening of an uncertain future event cannot be enforced until that event happens / takes place 30. Further, Section 32 also states that if the uncertain future event in question becomes, due to any reason, impossible, then the contract in question shall become void. For the purposes of Section 32, the contingent event must be collateral to the contract which essentially means that the contract is said to have already arisen or be in subsistence, but its performance cannot be demanded unless the contemplated event happens 31.
In the context of Indian football, a player contract is a contract which is contingent on the organization of the respective league season. Once the league seasonhas commenced, the player contract shall become enforceable between the parties. Conversely, if the organization of the league season becomes impossible due to any reason, the player contract is likely to be void. Since most of the player contracts in Indian football contain a standard ‘force majeure’ clause, they shall be governed by Section 32 of the ICA as stipulated by the Supreme Court of India 32.
Section 56 of the ICA provides for “Contract to do act afterwards becoming impossible or unlawful”. Section 56 of the ICA deals with the doctrine of “frustration of contract” and stipulates that a contract to do any act shall become void if, after the contract is made, the said act becomes impossible or by any reason, which the promisor could not prevent, unlawful. The ‘doctrine of frustration’ was established in the landmark judgment of the Supreme Court of India in Satyabrata Ghose v. MugneeramBangur& Company and Ors. 33 wherein the Supreme Court has held that relief shall be granted by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event of change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. The relevant portion of the judgment has been reproduced below:
The word ‘impossible’ in relation to ‘impossibility of performance’ has been interpreted by the Supreme Court to include not only physical or literal impossibility, but also impracticality and futility of performance of an agreement in relation to its object due to an untoward event or change of circumstances completely upsetting the very foundation upon which the parties rested their agreement 34. Therefore, the doctrine of frustration under Section 56 of the ICA contemplates physical impossibility due to destruction of the subject matter or otherwise, as well as the occurrence of an entirely unanticipated and unforeseen change of circumstances which so affects the performance of the agreement so as to render it virtually impossible, futile or hazardous.
In the context of Indian football, a player contract is an agreement between a club and a player in order to ensure the player’s participation in the respective league in lieu of payment of the requisite remuneration by the club.
Any subsequent event such as cancellation of a league season or cancellation of all football/sporting activities,is likely to be construed as an event which strikes at the root of the player contract thereby affecting its performance. Those player contracts which do not contain a standard ‘force majeure’ clause or where the event affecting the contract is not covered by the existing ‘force majeure’ clause shall be governed by Section 56 of the ICA as stipulated by the Supreme Court of India.
A key difference between ‘force majeure’ situations under Section 32 and 56 of the ICA is that unlike Section 32 wherein the dissolution of the contract is in accordance with the provisions of the contract and the election of the parties, dissolution subsequent to the frustration of the contract under Section 56 is automatic and does not depend upon the intention or the election of the parties to the contract.
Therefore, ‘subsequent impossibility’vis-à-vis performance of acontract either due to impossibility of the event on which the contract is contingent or due to the occurrence of a subsequent, unforeseen and unavoidable event which strikes at the root of the contract thereby rendering performance impossible, is the crux of the law on ‘force majeure’ in India.
Would the temporary suspension of the I-League season 2019/2020 render the performance of the player contracts ‘impossible’ as per Indian law? It is imperative to bear in mind that the Supreme Court of India has ruled that all force majeure clauses shall be construed narrowly 35.
It is unlikely that the temporary suspension of the I-League season 2019/2020shall be construed as having rendered the performance of the existing player contracts ‘impossible’ since the Supreme Court has consistently ruled that mere change or alteration or delay in the performance of a contract does not lead to frustration of a contract or render its performance ‘impossible’ 36 and that a contract does not become frustrated solely by virtue of being onerous or commercially undesirable or difficult 37.
The situation would change substantially, if AIFF cancelled and brought the current I-League season to an end and expunged the results of the season. Since ‘subsequent impossibility’ vis-à-vis performance of a contract is the crux of the law on force majeure in India, cancellation of the 2019/2020 I-League seasonis likely to lead to the following:
The duration and object of the I-League player contracts could be crucial in such a scenario:
The situation is also likely to be different if the AIFF concludes the 2019/2020 I-League season, cancels the remaining matches and proceeds to award the championship title along with the respective AFC competition qualifications as per present standings in the league table. It is unlikely that conclusion of the 2019/2020 I-League season in such a manner would be construed as ‘subsequent impossibility’ and/or ‘frustration’ vis-à-vis performance of the player contracts under Indian law. This is because conclusion of the seasonin such a manner would mean that the happening of the event on which the contractsare contingent has been rendered possible and the object of the contracts have been fulfilled instead of being rendered impossible.
It is imperative to point out that under Indian law,the parties to a contract are free to contemplate the possibility ofan intervening circumstance which might affect the performance of the contract and if they expressly stipulate that the contract would stand despite such circumstance, there canbe no case of frustration 38.
As has been stated previously, FIFA has issued its COVID-19 Guidelines in order to address and mitigate the upheaval caused due to the global COVID-19 pandemic. FIFA has recognized that the COVID-19 pandemic may lead to situations whereby agreements cannot be performed worldwide as the parties originally anticipated. Accordingly, FIFA, through its COVID-19 Guidelines, has proposed certain guidelines for ‘agreements that cannot be performed as the parties originally anticipated’. The following are the guidelines proposed by FIFA:
While proposing these guidelines, FIFA has stated that, ultimately, national employment and/or insolvency laws (or collective bargaining agreements (CBAs), where in force) will answer immediate questions regarding the viability of a football employment agreement that can no longer be performed. Accordingly, FIFA has stipulated that the above-mentioned guidelines are to be considered as general (non-binding) interpretative guidelines to the FIFA RSTP.
Since Indian law would have primacy over the FIFA guidelines in case of ‘agreements that cannot be performed as the parties originally anticipated’, the viability and enforceability of the FIFA COVID-19 Guidelines in the Indian context must be gauged accordingly.
As has been stated before, under Indian contractual law, the parties to a contract are free to contemplate the possibility of an intervening circumstance which might affect the performance of the contract and if they expressly stipulate that the contract would stand despite such circumstance, there can be no case of frustration 39. Hence, parties to a player contract in India retain the right to expressly covenant that the contract shall stand despite the COVID-19 pandemic and stipulate the manner in which the COVID-19 pandemic shall affect their corresponding rights and liabilities under said contract.
Therefore, the first proposal under the FIFA COVID-19 Guidelines i.e. encouraging clubs and employees (players and coaches) to find appropriate collective agreements addressing remuneration (deferrals or reductions) and contract extensions is likely to be viable and enforceablein India.
Unilateral variations to contractual terms, by either party, in case of a frustrated contract are not permitted under Indian law.The consequences of a frustrated agreement are determined by the ‘doctrine of restitution’ under Section 65 of the ICA which stipulates that when a contract becomes void subsequently, any person who has received any advantage under such agreement or contract is bound to restore it or make compensation for it to the person from whom he / she received it 40.
In relation to a contract becoming void subsequently, the Supreme Court has observed and stated, in Kuju Collieries vs. Jharkand Mines Ltd &Ors. 41 and Tarsem Singh vs. Sukhminder Singh 42 that Section 65 is based on equitable doctrine and provides for the restitution of any benefit received under a void agreement or contract and, therefore, mandates that any "person" which obviously would include a party to the agreement, who has received any advantage under an agreement which is discovered to be void or under a contract which becomes void, has to restore such advantage or to pay compensation for it, to the person from whom he received that advantage or benefit.
In case of frustration of a player contract, either vide Section 32 or Section 56 of the ICA,the ‘doctrine of restitution’ 43 would apply and both parties to the player contract i.e. the club as well as the player / coach can proceed under Section 65 of the ICA to claim restitution or compensation for the benefits received under the respective player contract.
Therefore, the secondand thirdproposals under the FIFA COVID-19 Guidelines i.e. unilateral variation of terms areunlikely to be enforceable in India.
Notwithstanding any of the above-stated, the possibility of the AIFF implementing its own regulations akin to collective bargaining arrangements after conducting discussions with all stakeholders in Indian football cannot be ruled out. The AIFF may actively encourage parties to find appropriate collective agreements or direct all agreements to be suspended for the duration of the COVID-19 pandemic (or at the very least the duration of the nation-wide lockdown) with appropriate insurance and alternate income arrangements in place.
The outbreak of COVID-19 has led to uncertainty among the governing authorities and all the stakeholders in the football industry. Due to the unprecedented nature of the impact caused by COVID-19, the road ahead remains unclear as all the parties involved continue to cope with the challenges presented to their operations by the pandemic.
The AIFF League Committee has, in its meeting on 18th April 2020, deliberated upon the impact of the COVID-19 outbreak in India and provided its recommendations to the AIFF Executive Committee 44 whereby it has recognized that the COVID-19 crisis is a force majeure event and has recommended the conclusion of the 2019/2020 I-League season with Mohun Bagan being declared as the I-League champions. However, the AIFF Executive Committee shall have the final say and its decision has not been made / communicated hitherto.
The suspension, cancellation or conclusion of football activities in India might end up having several legal implications, the outcomes of which, remain uncertain as of now. An example of such uncertainty isthe stalemate 45 in England, whereby the Premier League and the participating clubs are struggling to make any breakthrough 46 in their talks with the respective players representative body, the Professional Footballers' Association (PFA), vis-à-vis wage cuts and/or payment deferrals due to the financial loss the league and the clubs are going to suffer as a consequence of the COVID-19 crisis. It is possible that a similar situation may occur in India too.
While FIFA has attempted to mitigate the upheaval caused due to the global COVID-19 pandemic by proposing certain measures vide its COVID-19 Guidelines, their enforceability remains limited due to the peculiarities of Indian law especially when it comes to unilateral variations to contracts. If a clause pertaining to ‘pandemic’ or ‘epidemic’ has been mentioned in a football agreement, then as per Indian law, the party has a right to invoke the same, as that would be considered as an existing arrangement in the Indian context.
In the meantime and in light of the fact that, under Indian law, the parties to a contract are free to contemplate the possibility of an intervening circumstance which might affect the performance of the contract and expressly stipulate that the contract would stand despite such circumstances and the same being similar to the primary measure proposed by the FIFA COVID-19 Guidelines, the clubs and players in Indiawould be well served in attemptingamicable negotiations and finding mutually acceptable solutions to the impending contractual quagmires arising due to COVID-19,in order to safeguard their interests.