In the wake of the COVID-19 pandemic, force majeure as a legal term has suddenly entered our lives.
A force majeure event is an unforeseen and superior event which is beyond the control of the contracting parties and prevents them from fulfilling their obligations under the contract. The usual examples you will find in documents like insurance contracts are war, strike, riot, crime, plague or an event described by the term “act of God” (things like earthquakes, volcanic eruptions, floods and gale force winds). The force majeure then excuses a party from performing his obligations in terms of the contract, but only for the duration of the force majeure. It is commonly accepted that the lockdown in place in South Africa since 27 March can, depending on the parties’ contractual relationship, be construed as a force majeure.
So, can force majeure principles be applied to the professional contracts of cricketers in South Africa? While a force majeure clause is common in contracts where both parties are obliged to deliver some type of performance, no player contract in South African cricket (whether at national, franchise or provincial level) currently has such a clause.
Where a contract does not contain a force majeure clause, the legal principle of supervening impossibility becomes applicable. In such a case the party who wants to be relieved of his duties to perform due to the supervening event must prove that:
- As a result of the supervening event, contractual performance is impossible for him. It must not be merely difficult or more costly, but impossible.
- And (not or) that the event was unforeseen and therefore his non-performance unavoidable.
How would one apply these principles to the current professional contracts in South African cricket?
Firstly, is the COVID-19 lockdown a supervening event? Yes. Since it is possible to call it a force majeure, by logical extension it could therefore also be regarded as a supervening event.
Secondly, has the supervening event made performance impossible? On 16 March Cricket South Africa (CSA) suspended all cricket activities for 60 days. Therefore, yes, since 16 March it has been impossible for cricketers to perform their main obligation, to play cricket. But it is still possible for them to perform other, minor obligations (like staying fit, observing the anti-gaming and anti-doping regulations, and adhering to the restrictions on social media commentary). Performance is therefore not completely impossible.
As for the teams to which the players are contracted, one of their main obligations is to pay the players. Is this still possible? The cricket season was almost over when the “cricket lockdown” took effect. It can therefore be argued that CSA and the teams’ revenue streams have not been materially affected by the lockdown. In the short term, paying players therefore ought not be a problem – difficult, but not impossible. However, the more tours and tournaments are going to be cancelled, the harder CSA will be hit financially, and it will have a knock-on effect for the domestic teams. In the long run paying players might therefore become impossible, either wholly or partially.
Finally, was the supervening event unforeseen? COVID-19 was not a sudden, unexpected event like an earthquake. Even though things unfolded rapidly in the sports world during March, it was foreseen. To wit, CSA’s swift action in announcing the “cricket lockdown” two weeks before the national lockdown.
At the moment, taking all factors into consideration, all the requirements are therefore not met for either the cricketers or the teams to be relieved of their duties to perform under the current professional contracts in place in South African cricket.