By: Lily Fontenot
On May 7, 2020, the National Football League (NFL) released its schedule for the upcoming 2020-2021 season. The 2020 season is scheduled to kick off on Thursday, September 10 in Kansas City as the reigning Super Bowl Champions, the Kansas City Chiefs, host the Houston Texans. The schedule release provided sports fans with much-needed hope in light of the current shutdown of professional sports in the United States due to the global coronavirus pandemic.
In response to the pandemic, the NFL indicated that Super Bowl LV, which is set for February 7, 2021, in Tampa, Florida, could be postponed by a couple weeks without significantly changing or canceling the regular season matchups. For example, if the beginning of the season is delayed by a week or two, the NFL can move the delayed games to the end of the season and push back the Super Bowl accordingly. This ability to move Super Bowl LV allows flexibility for the NFL to adapt its season to the constantly evolving public health conditions and regulations.
However, how is this flexibility compatible with legally-binding contracts, including the contracts made between the NFL, venues, hotels, sponsors, etc.? If the pandemic forces a schedule change, a force majeure clause could come into play. A force majeure provision “excuses one or both parties’ performance obligations when circumstances arise which are beyond the parties’ control and make performance of the contract impractical or impossible.” Force majeure translates from French as “superior force,” which explains the types of events covered by force majeure clauses. These events, which are typically listed in the contractual language, include acts of God, such as hurricanes, tornados, fires, and floods. Additionally, wars, acts of terrorism, epidemics, governmental acts, changes in law or regulations, and strikes and labor disputes are usually included in these provisions.
Similar to the legal issues in the ongoing coronavirus pandemic, courts interpreted force majeure clauses during the Spanish influenza of 1918. In Citrus Soap v. Peet Bros Manufacturing, the city of San Diego forced a soap company to shut down its factory for a few days to combat the Spanish flu. Due to the shutdown, the company’s delivery of soap drums to Peet Bros was delayed, which Peet Bros refused to accept. The contract between the two parties included a contingency clause that required the company to give notice if there was an unforeseen delay in production. The court held that the soap company’s notice was a reasonable attempt, in good faith, to meet the contract requirements. Thus, the delayed performance did not violate the contract.
Moreover, courts tend to adopt narrow interpretations of force majeure provisions. In In re Cablevision Consumer Litigation, the court emphasized that force majeure clauses “will generally only excuse a party’s nonperformance if the event that caused the party’s nonperformance is specifically identified.” This reasoning introduces the paradox of force majeure clauses: how can an unforeseen event be specifically identified in a contract? Consequently, modern force majeure clauses should include longer, more specific lists of possible extreme events in order to better protect the contracting party.
However, the current Collective Bargaining Agreement between the NFL and the NFL Players Association (NFLPA) has limited language in its “Cancelled Games” provision that favors the players over the league. The provision, which only mentions “a terrorist or military action, natural disaster, or similar event,” requires good faith negotiations to adjust the total revenue and salary cap for the following year, not for the current year. So, the NFLPA could argue that the players are entitled to their full salaries for the 2020 season regardless of how many games are played. Therefore, the NFL must be cognizant of its limited force majeure provision if it needs to delay the upcoming season in order to protect the health of the players, staff, and fans.
If the NFL must delay the Super Bowl due to COVID-19, it will not be the first time that the Super Bowl was moved due to a national crisis. After the terrorist attacks on September 11, 2001, the NFL postponed Week 2 of its regular season and consequently rescheduled Super Bowl XXXVI, which was originally scheduled for January 27 in the New Orleans Superdome. However, moving the Super Bowl back one week was not a simple task. During the weekend of February 3, the proposed new date, the National Automobile Dealers Association (NADA) was scheduled to host its convention in the Superdome and surrounding areas. After weeks of negotiations between the NFL and NADA, the NFL agreed to pay the car dealers $7.5 million to switch dates in the Superdome and to match up to $500,000 of NADA contributions to the September 11 relief efforts. This deal allowed the NFL to retain its 12-team playoff format while keeping the Super Bowl in New Orleans. Similar to this one-week delay in 2001, the 2020 season could be adjusted to accommodate the ongoing efforts to combat the coronavirus.
Additionally, the NFL moved Super Bowl XXVII out of Arizona due to state political conditions. In November 1990, a voter referendum rejected making Martin Luther King Day an official state holiday. After this refusal, the NFL moved the 1993 Super Bowl from Arizona to Los Angeles. This voter referendum is an example of unforeseen or extreme state government action that is typically mentioned in force majeure clauses. During the current pandemic, legislation and lockdowns vary drastically from state-to-state and even city-to-city, which could impact the NFL’s 2020 season. However, because the NFL’s force majeure clause does not specifically mention government action, the NFL’s leverage is limited in this sense.
Furthermore, the NFL canceled all international games for the upcoming 2020 season in response to the coronavirus pandemic’s global presence. Originally, the league scheduled four games in London and one in Mexico City; however, the NFL decided to cancel all of these games for the “well-being of players, personnel and fans.” The league currently plans on returning to London and Mexico City for games in the 2021 season.
Thus, a change in the 2020 season due to the coronavirus pandemic would not be the first time that the NFL had to adapt its season. However, the NFL’s current “Cancelled Games” provision could limit the league’s ability to restructure the season. Due to the increased attention to previously over-looked force majeure clauses, the NFL should consider redrafting its provision to better protect itself from future events.