Return to Elite Sports post Covid-19

England

Easing of the Covid-19 lockdown restrictions will cause significant challenges to many industries across the UK, including the elite sports sector. Sporting clubs, bodies, players and employees will need to navigate new territory to ensure that all obligations are fulfilled, and health and safety is at the forefront of everyone’s minds. Correctly implementing these new restrictions/regulations will be particularly tough given the negative impact Covid-19 has already had on the global economy. This article will cover three practical issues to be considered during the return to elite sport.

1. Health and Safety

The Government has released guidance on the return to elite sport however this sets out the minimum standard expected, and it is not law or public health advice. All clubs should seek their own advice on these issues, as well as ensuring any plans implemented are in line with the regulations set out by the various governing bodies of the respective sport.

All user groups must opt-in to return to competition (this includes officials, players and any employees). There are further pieces of guidance for those returning to offices, which includes ensuring social distancing, hand washing, marking of entrances and exits, increased cleaning and disinfecting and certain obligations on health and safety assessments depending on the size of the group of people returning. The most vulnerable people in the workplace should be offered the safest roles. Clubs will also need to consider the potential impact on BAME employees, who are at a disproportionately higher risk to suffer effects from Covid-19. Employers should take extra care implementing any measures as there will likely be an increase in whistleblowing claims for health and safety breaches.

Clubs should consider how they will implement the regular deep cleaning of shared areas and equipment, including the monitoring and recording of the same. Any cleaning records should also be maintained and stored for future reference. Clubs will also need to consider how many people will be allowed to attend any training or sports events, records of who has been in contact with whom and keeping some form of tracing capability. This will include taking and storing this data for any spectators returning to stadiums following the pilot in August 2020 and, assuming the pilot is successful, increased spectator return from October 2020. Further, Clubs should consider whether screening procedures should be used at venue entrances. Clubs should seek advice on data protection measures for any screening and / or data collection and storage methods. Further, for the return of spectators, Clubs will need to implement new crowd management strategies including the controlled entry and exit of spectators using one-way systems, additional hygiene facilities at entrances and exits and social distancing in seating arrangements. 

Medical staff (including a Covid-19 medical officer) should be in place and  clubs must ensure all insurances and professional memberships are still valid. The Club will need to share details of the new measures in place due to Covid-19 with all employees, players, officials and those visiting the workplace/club. Training should be given to everyone and records kept of who attended the training, the topic covered and when it was given. Signage and information on measures put in place due to Covid-19 e.g. social distancing, should be clearly displayed for the benefit of all those in attendance at sports venues including any potential spectators.

2. Contingency Planning

As lockdown eases across the UK, many health officials are warning of the risks of a “second wave” with a return to lockdown. One only has to look at the recent situation in Leicester, where they were told days before the 4 July “Super Saturday” that their lockdown restrictions were not to be relaxed due to a recent spike in positive cases. Elite sports clubs need to be mindful that a second spike is a possibility. Clubs will need to make sure that they are prepared for a further lockdown which bans elite training or playing of sports. It would be prudent to keep contingency plans readily available for these types of situations. 

It is inevitable that the UK will enter a recession due to the negative effects Covid-19 has had on the economy. It is likely that sports clubs will be unable to have full paying spectator capacity in any grounds for some time to come, meaning a potential significant dent to the clubs’ income. Even if paying spectators are allowed to attend in due course (as the Prime Minister has suggested could happen from October 2020), it is likely that spectators will be reduced in numbers either due to social distancing measures or due to the effects of a recession meaning people have less spare money to pay to watch live sports.

Clubs need to carefully consider, and plan for, the significant financial impact Covid-19 will have. Careful review of the clubs’ finances should be undertaken by Directors and much consideration will need to be given before entering into any significant financial commitments. Clubs could consider what further contracts could be agreed to earn further income such as image rights, TV appearances and sponsorship deals. Clubs will need to carefully consider any exclusivity or non-compete clauses in current contracts before entering into any new contracts. Likewise, there will likely be a surge in cancellation of contracts (potentially by Clubs themselves or those they contract with). Always take advice before terminating any contracts to ensure that the risk of legal action is mitigated. Further, careful thought will need to be given to any potential Force Majeure clauses or the use of the doctrine of frustration. For further information on Force Majeure in the Sports Industry, see our recent Law-Now here.

3. Scheduling

Where possible, scheduling of games or matches should be reviewed to ensure that dates can be met safely and efficiently. If there are areas where it is apparent that a change of scheduling arrangements would be beneficial, it may be possible to use this time to make any changes. This is of course subject to the public nature of such matches and the guidance from any governing bodies within your relevant sport.

The need to change scheduling may become even more apparent if the UK’s lockdown restrictions are increased, or if social distancing is expected to continue for a considerable length of time. When changing any scheduling, Clubs will need to carefully consider any contractual clauses alongside the potential for any disputes because of the effect of scheduling change e.g. if a match can no longer be played, a Club may want to consider terminating some agency employment contracts entered into for that match, any media contracts or any catering contracts.  The cancellation of any contracts could have a negative knock on effect in terms of potential liability for the Club and advice should be taken in advance if possible or cancellation rights should be included when entering into contracts where possible.

CMS have a wide range of lawyers across the UK, and globally, who have expertise in sports law issues. Should you wish to discuss any of the issues in the article further, please feel free to reach out the key contacts listed to the right of this article.