Don’t get caught offside with the post COVID-19 return of sport

The return of sport at both the professional and community levels post the COVID-19 restrictions is a welcome return to a sense of normality.  However, life is not as we knew it (and might not be for some time to come), so here are some pointers to avoid being caught offside during the transition.

Do your contracts with athletes, officials, sponsors and others align with the ‘new normal’?

The activation of force majeure provisions in contracts and the reinstatement of parties’ obligations post COVID-19 need to be carefully managed. While your contractual obligations may have been suspended, unless your agreements have been adequately varied, the return to ‘normal’ operations (even if modified) brings with it a return to the full rights and responsibilities of the pre-COVID contract.

Having regard for the new-norm with modified fixtures, changing sport and spectator arrangements and the overall reduction in sponsorship and other revenue, the commercial basis upon which your existing contracts were formed may no longer be viable, and could necessitate a further review and in some cases, even termination.

This process requires compliance with strict contract law principles, including consideration of both express and implied terms, and the contractual relationship that exists between both parties. Don’t get caught offside by failing to revisit your contracts in light of the post-COVID sporting landscape, which could have commercial as well as reputational consequences for your business moving forward.

How do you restructure during this time?

The changed sporting landscape may bring about a need for organisational restructuring and downsizing, including at executive and management levels. In addition, the transition from Jobkeeper and the reductions in hours and salaries will be key considerations for many sporting organisations, regardless of size.

Not only should you consider the workplace law requirements around employee stand-down, redundancy and termination, but you should also ensure that you are aware of, and can comply with, your obligations contained within modern awards, enterprise agreements and employment contracts. The development of new organisation designs, governance overlays, accountability models and reporting/compliance obligations are key to ensuring your business transition post COVID-19 can occur smoothly.

Does the modified schedule or rules comply with legal requirements?

Everyone from governing bodies, participants, sponsors, suppliers, spectators, and those who may gamble on sport, expect a return to sport that is ethical, fair and equitable. This expectation is underpinned by a range of legal requirements.

In the post COVID-19 sporting landscape, many sports have modified their rules to condense sporting fixtures and to fit within the strict ‘return to sport’ health and governing body directives. A review of these modified arrangements against the breadth of legal and contractual obligations is necessary to ensure that the desire to return to normal is balanced with your legal obligations, including how your business can and should respond if restrictions are reimposed.

It’s important to commission independent and professional advice to assist your business as you transition into the post-COVID sporting landscape. The Kalus Kenny Inelex Sports Law team have experience offering independent legal and strategic advice, and can help you to ensure that your business is not caught offside at this difficult time.