Davies, Chris --- "Sport and Covid-19: A Question of Management and Contracts" [2020] JCULawRw 9; (2020) 26 James Cook University Law Review 127

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SPORT AND COVID-19: A QUESTION OF MANAGEMENT AND CONTRACTS

Chris Davies^[1]•

Abstract

The year 2020 will always be remembered for the COVID-19 pandemic. This brought on unprecedented governance issues for Australian and world sport, such as having to make immediate changes to season schedules and the setting up of bio-security bubbles in order to ensure seasons could be completed. The reduced seasons also meant the contracts for broadcasting rights had to be re-negotiated, with both the Australian Football League and National Football League agreeing to reduced broadcasting revenue, not only for 2020 but also for the next two years, in return for the security of increased terms. Cricket was the only major sport to have problems with its broadcasting deal. Cricket Australia has refused to accept it should accept lower payments from Seven and Foxtel while the broadcasters are equally adamant they should not have to pay the contractually agreed amounts due to a lesser product being delivered. The loss of revenue has meant extensive cost-cutting measures have been implemented in all sports, resulting in inevitable redundancies and salary cuts for both players and administrators. What the COVID-19 pandemic has highlighted is that professional team sport relies heavily on contracts.

I Introduction

COVID-19 created immense disruption to both health and the international economy. Like many industries, sport was heavily impacted. Perhaps the most high profile effect was the postponement of the Olympic Games, which were to be held in Tokyo in July-August 2020 to 2021. Other internationally based sports, such as rugby union, were also affected, with the Six Nations competition having to be immediately suspended, as was the Super Rugby competition. Individual international sports like golf and tennis also had to suspend their tournaments, later returning without crowds. However, major events in both sports, namely the British Open and Wimbledon, were later cancelled. In the United States, the National Basketball Association (NBA) suspended its season for many months before forming a bio-secure hub in Florida where the remaining games were played in front of no crowds. Major League Baseball (MLB) had to delay its season for several months from its usual late-March start. It eventually commenced in June with a reduced schedule of 60 games for each team instead of the usual 162, and again, with no crowds. In the Australian domestic competitions, both the Australian Football League (AFL) and the National Rugby League (NRL) had to suspend their just-started 2020 competitions before a restart in late May-early June, initially to no crowds, later with restricted numbers. The Super Netball competition also had a delayed start to its reduced season which was likewise played in front of limited crowds.

Thus, all major sports have faced management challenges which in turn created legal issues, mainly to do with how they were going to manage their existing internal and external contractual obligations. These have included the logistics of re-scheduling the competitions, needing to move teams to bio-secure hubs, and the issues arising from players and coaches breaching the biosecurity protocols. A number of NRL coaches resigned during this period with there being further contract issues with television broadcasting deals arising from the significant scheduling changes. The marked drop in revenue also led to a reduction in player salaries, and administrative and support staff redundancies.

This paper will examine the management issues faced by the various professional team sports in Australia in response to the COVID-19 pandemic. It will also examine the various contractual issues that arose from the need to reschedule competitions and cut costs due to the decline in revenue.

II The Management Issues

A Creating New Competitions

It was the weekend of 14-15 March 2020 when the pending pandemic crisis emerged in Australian sport, although, overseas, the cancellation and postponement of matches and competitions had already began. The one-day cricket international between Australia and New Zealand on Friday 13 March at the Sydney Cricket Ground (SCG) was the first sporting event to be affected, with supporters being informed on the morning of the scheduled day-night match that, while the game would go ahead, it would be without any spectators. One reason Cricket Australia (CA) had to be proactive was that it had received news that a spectator who had attended the Women’s T20 World Cup at the Melbourne Cricket Ground (MCG) the previous weekend had tested positive to COVID-19. That spectator had just returned from overseas and there were concerns that other nearby spectators may also have become infected. A second match scheduled for the SCG on Sunday 15 March then had to be abandoned because of the New Zealand government’s decision to close its borders. This meant the New Zealand cricket team had to return home immediately, or face a two week quarantine period.

That weekend was also the scheduled first round of the NRL and, while it proceeded with crowds, the Australian government announced the following Monday that crowd numbers would be limited to 100 for indoor venues and 500 for outdoor venues. The second round of the NRL went ahead the following weekend, as did the first round of the AFL, all in front of no crowds, before both competitions had to be postponed, along with soccer’s A-League and Super Rugby. The AFLW season had to be abandoned, despite the regular season having been completed, leaving only the finals to be played.

With all of Australia in lockdown sports other than the AFLW had to come up with a new format for their competitions. For the A-League it was relatively straight forward since it was more than three-quarters through its summer-based competition and simply had to wait until the restrictions were eased to complete the rest of its season. However, both the AFL and NRL acknowledged they would have to shorten their seasons, the AFL immediately announcing it would reduce its scheduled 22 round competition to a 17 round season. It also extended the season from its scheduled end-of-September finish to the end of October. The reduction to 17 rounds was a logical one as it meant each team in the 18 team competition would play each other once. When the competition recommenced the AFL created a hub on the Gold Coast to simplify the logistics of teams having to move across state borders. This move was later vindicated when Victoria went into a second wave, forcing the AFL to hastily move all the Victorian based teams to Queensland. That was quickly followed by the two Sydney teams after the announcement that the Queensland-NSW border would soon be closed. With all these clubs in hotel accommodation it was estimated the AFL was now spending over $3m a week to keep the competition going.^[1]

Queensland was to remain the base for all but the South Australian and Western Australian teams, though anyone joining the hub had to quarantine for fourteen days while everyone living within it had to comply with strict biosecurity protocols. The condensed season also saw an unprecedented 33 games being played in just 20 days as the AFL sought to do whatever was necessary to complete it.^[2]

Early in September it also announced the Grand Final would be held at the Gabba in Brisbane, despite it having a contract to stage it at the MCG. The solution for this necessary breach of contract was to add another year to its agreement with the Melbourne Cricket Club which runs the MCG. That is, the AFL agreed to extend the contract until 2057 instead of 2056.^[3]

The NRL restarted its competition on 28 May, one reduced to 20 rounds from the original 24, and, like the AFL, had to push its Grand Final back to the end of October. The loss of rounds also meant a loss of broadcasting revenue, with suggestions that the loss may have been in the order of $50m.^[4] A 50 page document was also drawn up prior to the restart of the competition which outlined the bio-security protocols for players, clubs and officials, the players being given a strict list of obligations they needed to follow at both home and training.^[5] Despite this, the NRL did have a COVID-19 scare in early June when the Sydney Roosters and Canterbury-Bankstown game had to be postponed due to Canterbury player, Aiden Tolman, being connected to a cluster at a school attended by one of his children.^[6] However, the NRL was able to complete the season with no issues from positive tests.

The A-league resumed its season, but not without complications in getting the three Melbourne-based clubs out of the city. The three teams had arrived at Melbourne airport, ready to leave, but had to return home due to fog-related flight delays and problems with the travel exemptions the A-League had been organising. Melbourne United were the most vocal in their criticism as they had wanted to leave the previous weekend when all the AFL clubs had managed to scamper across the NSW border before it closed.^[7] However, after a two week hotel quarantine for the Melbourne clubs, the remaining matches were all completed. The Super Netball competition, likewise, had to take its Melbourne based teams up to Queensland where the majority of its matches in its shortened season were played, including the finals, with the Grand Final being played in Brisbane on 18 October.

Overall, the governing bodies of these sports displayed exemplary governance practices in re-organising their seasons, though both the AFL and NRL had incidents of players breaching the bio-security protocols that the two sports had negotiated with the Queensland and Western Australian governments. While reducing the number of matches was the only way the governing bodies could complete their seasons, it meant a decrease in their broadcasting revenue, on top of the loss of gate receipts because of no crowds or restricted capacity. The loss of revenue created a need to cut costs, resulting in inevitable and widespread redundancies.

B Cost-Cutting and Redundancies

In March the AFL stood down much of its workforce in order to cut costs on staff wages which, in 2019, had been $115.6m.^[8] Later, in August, it announced that 20 per cent of AFL employees would be made redundant while the executive team would be reduced from 11 to eight as it faced an estimated $400m loss for 2020. The cost-cutting also extended to the clubs, with Fremantle assistant coaches, Anthony Rock and Michael Prior, and Gold Coast Suns’ assistant coach, Dean Solomon, being examples of AFL coaches who lost their jobs.^[9] The cost cutting and redundancies have also occurred at lower levels with Josh Fraser, coach of Carlton’s second string team, the Northern Blues, having his contract terminated after Carlton cut its ties with the Northern Blues in order to reduce costs.^[10]

In the NRL, clubs took immediate cost cutting measures with Canterbury, for instance, standing down its whole coaching staff without pay in late March while the NRL was in lockdown.^[11] The Melbourne Storm likewise sent its staff on a month-long break at the beginning of the pandemic.^[12] Longer-term cuts have now been made at clubs such as the Brisbane Broncos which announced a number of cost savings, including a 75 per cent decrease in the remuneration of its directors for the rest of 2020, with executive and coaching staff taking a 20 per cent pay cut. Despite these measures the club also had to issue 22 redundancies.^[13] Penrith meanwhile announced it would make cuts to the $4m it spends on fielding seven under-age representative teams in competitions such as the Harold Matthews Cup. The costs include remuneration for coaches, managers and development officers. They also include other reduced outlays, such as paying the expenses of recruits if they needed to live away from home.^[14] These cost-cutting measures will not be limited just to 2020, with the NRL stating it will need to restructure in order to make savings of $50m from its operating costs in 2021.^[15] The NRL reportedly had to use $80m of its cash reserves to keep the 2020 competition going and also to help keep the clubs afloat. The announced solution is a 25 per cent reduction in the number of NRL employees.^[16]

Rugby union faced a potential $120m loss in revenue if no matches could be played in 2020. This led to 75 per cent of the 142 staff at Rugby Australia (RA) being stood down from April to June 30, while most of the employees at the four Super Rugby franchises were either stood down or retained on reduced hours and pay. The 15 executive staff meanwhile agreed to take at least a 30 per cent salary cut while all board directors agreed to defer their fees.^[17] In August a restructuring was announced that saw the permanent culling of 47 full-time employees which will produce savings of $5.5m in wages.^[18] RA however was able to secure a $14m loan from World Rugby, part of the $150m that World Rugby made available to help national organisations survive the pandemic.

Cricket, too, had to undergo cost-cutting measures, with 200 staff at CA’s head office being stood down on 20 per cent pay, despite the fact it was a sport that had been able to complete most of its season. However, there were reports that CA had invested money in the stock market which suffered significant losses due to the pandemic.^[19] The CEO, Kevin Roberts, defended his calls for major cuts to state grants and other programs after news the scheduled 2020 T20 World Cup had been postponed to 2021, leaving a revenue shortfall of $20m. This resulted in more than 100 jobs being cut by the state organisations.^[20] However, it also resulted in the removal of Roberts as CEO in mid-June, it being suggested that this would allow ‘the organisation a chance to reset its financial position, ease the level of cost-cutting and to sell a more positive picture of the game.’^[21]

C The Bio-Security Breaches

Even before the AFL season actually resumed there was an issue with a bio-security breach during the training period. Players from the Adelaide Crows, who were booked into the Novotel resort near Tanunda in the Barossa Valley, were supposed to only train in pairs, but at one session the 16 players trained in two groups of eight. While there was the possibility of criminal charges being laid due to the COVID-19 regulations in South Australia at the time, the police stated they would not pursue the matter, acknowledging it was ‘an honest mistake.’^[22] The AFL however fined the club, and assistant coach, Ben Hart who had been in charge of the training session, was suspended for four weeks. It was not to be the last breach by an AFL coach, with, Collingwood’s Nathan Buckley, and his assistant, Brenton Sanderson, splitting a $25 000 fine for leaving their Perth hotel to play a game of tennis with someone outside the club’s bio-security bubble.^[23]

A number of players also breached the protocols, with Collingwood’s Steele Sidebottom being suspended for four weeks after a night out in Melbourne, socialising with people outside of the club’s bio-security bubble. Sydney Swans’ Elijah Taylor was also suspended for four matches after his partner entered the club’s hotel while the club was in Perth.^[24] Melbourne’s Harley Bennell was meanwhile suspended for five matches after leaving the club’s hub for a drinking session in Maroochydore. The longest suspensions, however, were handed out to Richmond’s Sydney Stack and Callum Coleman-Jones who were both suspended for ten matches for visiting a Gold Coast strip club.^[25]

It was not just the players and coaches who had to abide by the strict protocols as all family members were likewise bound by the rules. Richmond captain, Trent Cotchin, agreeing to pay the $20 000 fine for his wife’s breach when she left the Richmond hub to attend a day spa.^[26]

The NRL also had issues with both players and coaches. St George-Illawarra player, Paul Vaughan, for instance, was fined $10 000 for breaching bio-security protocols after going out for a breakfast. The breaches were not restricted to players with South Sydney coach, Wayne Bennett, being fined $20 000 for dining with his partner at the Grappa Restaurant in Leichardt in breach of the bio-security protocols. Allan Langer and two other members of the Brisbane Bronco’s football staff, were also fined $5000 each by the NRL after holding a private party at the Caxton Hotel.^[27] These fines were small, however, compared to the $140 000 fine that was imposed on the Broncos and ten of their players after a visit to the Everton Park Hotel. The club was fined $75 000, each of the players five per cent of their salary.^[28]

While these penalties may appear to be harsh, both the NRL and AFL had to be strict in dealing with these breaches since the hubs were created with the permission of the relevant State Governments. These hubs had been allowed only on the clubs accepting protocols that were stricter than those faced by local residents, but required if the codes were to be allowed to move across state borders for matches without needing to comply with full quarantine measures. The right to use these hubs could easily have been revoked if breaches of the protocols placed the health of local residents in jeopardy. The legal basis for the fines and suspensions was to be found in the players’ contracts, which allow for penalties for code of conduct provisions.^[29]

Another contractual issue raised by the pandemic was the need to reduce player payments due to a marked decrease in revenue.

III The Contract Issues

A The Player Contracts

While the employment concerns faced by many within sport involved job security, for players it was about what amounted to an acceptable cut in their salaries. In March the AFL players accepted a 50 per cent pay cut until the end of May during which period the AFL would be shut down. This was a compromise on what the AFL had proposed which was reportedly as high as 79 per cent.^[30] Australia’s professional rugby union players accepted a 60 per cent pay cut after successful negotiations between the Rugby Union Players Association and RA. Three of the 192 players, Izack Rodda, Harry Hocking and Isaac Lucas, however, refused to accept the pay cuts, with their contracts with RA and the Queensland Reds being immediately terminated. It was no coincidence that all three had the same manager, Anthony Picone, with it being suggested they may have been poorly advised.^[31]

While the rugby union players made those financial sacrifice this year, there is still uncertainty for next year, with RA not yet willing to guarantee contracts until a new broadcasting deal is finalised.^[32] What this reflects is that the pay issue with the players in all of the professional team sports is one that is not going to be limited to the 2020 season. The financial impact of the pandemic is almost certainly going to continue for a number of years. The NRL, for instance, has indicated to its players union ‘that $400m will be wiped from the game’s bottom line in 2021 and 2022.’ It is therefore looking to reduce the salary cap at each club by ten per cent for the next two years, which will result in a ten per cent drop in player income shared across the player group.^[33] Interestingly, cricket will not face the same issue of needing the players to agree to cuts in salary as, in the previous EBA, the players had insisted on their payments being based on a percentage of revenue. ^[34]

There is no doubt that a cut in player salaries was essential for the professional team sports to survive the pandemic, both in 2020, and for next few years. The change in the level of remuneration was legal because the players agreed to the changes to their EBAs and, therefore, to their contacts.

While no AFL coach was sacked during the 2020 season, five NRL coaches were, and the contractual issues this raised will now be discussed.

B The NRL Coaches

In the midst of the 2020 seasons, former AFL premiership coach, Paul Roos, raised concerns that the criticism being made of the coaches was not taking ‘into account the COVID-19 conditions players and coaches are working in.’^[35] This certainly seems to have been true in the NRL with five of the 16 coaches who started the season losing their jobs despite the known unique challenges of the 2020 season. Canterbury-Bankstown’s Dean Pay and the New Zealand Warriors’ Steve Kearney were the first to go with the North Queensland Cowboys’ Paul Green and St George’s Paul McGregor soon following. This was despite Green still having a year left on his contract,^[36] as did McGregor, ^[37] while Pay’s contract was due to finish at the end of the 2020 season.^[38] The Brisbane Bronco’s Anthony Seibold also left, despite having completed just 20 months of a five-year contract,^[39] reportedly after accepting a $1m settlement.^[40]

A feature of all five terminations was that the coaches only resigned after consultation with management, indicating that offers of settlement regarding the remaining terms of their contracts had been accepted. Clauses can be included in contracts outlining the terms on which they can be unilaterally terminated. For instance, when soccer manager David Moyes signed a six year contract with English Premier League (EPL) club, Manchester United, a term of his contract was that Manchester United could terminate it on payment of one year’s salary. This it did after just one season. In the case of Seibold the reported $1m settlement offer by the club does not appear to be based on an actual term of the contract, but was agreed by the parties. However, if a club terminates a coach’s contract with no such agreed settlement, and no clause outlining how the contract can be terminated, legal action may result. When Des Hasler, for instance, was sacked as coach by Canterbury-Bankstown he threatened to take legal action against the club. While the matter was settled out of court, former coach of AFL side St Kilda, Grant Thomas, did go to court.^[41]

Thomas had been employed as St Kilda’s coach in 2001 and was in the midst of his fourth contract, which was due to finish at the end of the 2007 season, when the club Board decided to terminate his contract on 12 September 2006.^[42] It was suggested to Thomas that he should resign, but he informed the Board ‘that this would make them look like fools and that he should say they had a mutual agreement to part company.’^[43] A suitable payment in lieu of notice was then discussed, and it was agreed that a payment equivalent to six months’ pay, which was $270 000, would be made rather than the four and half months stipulated in the contract.^[44] St Kilda also agreed to pay Thomas $100 000 in April 2007 if he made no disparaging comments about the club after he left.^[45] When this money was not paid Thomas took the matter to court where it was held there was a binding contract for the $100 000 severance payment, not just an offer, as was argued by St Kilda.^[46]

It should be noted that the mutuality of obligations under a contract also means that a club can potentially take legal action against a coach or manager who unilaterally terminates their contract. For example when Jacobus Adriaanse^[47] abruptly resigned as FC Porto’s head coach, in breach of his contract, the club sued and was awarded €1,845,238.^[48] Similar action taken against his assistant coach, Olde Riekerink, resulted in the club being awarded €74,821.^[49]

While the situations involving both players and coaches highlighted the relevant contractual issues, the most significant issues during the pandemic involved the contracts for the various broadcasting rights.

C The Broadcasting Contracts

Frustration of the contract can be a legal means for one of the parties to terminate the contract. However, while the postponement of the various competitions required rescheduled seasons with reduced number of matches, it was still possible for the sports to fulfill their contractual obligations, though on reduced terms. Thus, while it was essential the broadcasting contracts were re-negotiated, it was still possible for the sports to complete their 2020 obligations, which meant that the contracts had clearly not been frustrated.

An interesting aspect of these renegotiations for both the AFL and NRL was that they included the years beyond 2020, the sports being happy to accept a negotiated reduction in money owed for the remainder of the existing contracts in return for greater security about this increasingly important source of revenue. It has been suggested, for instance, that the Seven Network negotiated a 17 per cent cut in the fees it will pay the AFL and expects to save $87m through until 2022, though it has also extended the deal until 2024. Foxtel is understood to have also struck a deal with the AFL to pay $90m less to the end of 2022.^[50] It has been reported that the NRL will forgo at least $150m in broadcasting revenue over the next three seasons,^[51] though it now has the security of a deal with Foxtel that has been extended to 2027. Rugby union also had to renegotiate its contract with Foxtel for the abandoned Super Rugby competition, reportedly receiving around $9m for its locally based Super Rugby AU competition. The Foxtel contract for the proposed four nation Rugby Championship also had to be renegotiated when South Africa announced it would not attend the competition that was held in in Australia during November and December. It was reported, however, that Foxtel were ‘delighted by the news’ all the matches were to be played in Australia, ‘seeing it as a golden but unexpected opportunity to drive up subscriptions at what is normally a dead part of the year.’^[52]

However, the sport that has seen the biggest issues regarding broadcasting rights is cricket. At first it appeared to be the sport that was going to be the least affected by the pandemic, having all but completed its season by the time of the March lockdowns, but things have changed since then. CA’s present stance is that it can fulfil the obligations of its $1.2b multi-year broadcasting deal if it can provide a full schedule for the 2020-21 season, namely five men’s tests, the Big Bash League (BBL) and women’s internationals. The broadcasters, Seven Network and Foxtel, take the view that the product will not be what it paid for if the marquee games, like the Boxing Day test in Melbourne, is held with no, or restricted, crowds.^[53] The broadcasters also claim that, with many players not being able, or not being willing, to travel to Australia for the BBL, that product will not be what it paid for, especially if CA has to rely more on local players, many unknown to the general Australian public.^[54] Seven has already indicated it is considering terminating its agreement with CA,^[55] with both it and Foxtel reportedly being ‘angry about the Big Bash League being stripped of its star power and is set to challenge the stark difference between the $120m it pays per year for rights and what it looks like being delivered this summer.’^[56] Seven’s first of three instalments of the annual $82m it pays CA was due on Tuesday 15 September. However, it reportedly only paid $15-20m, stating ‘that is all the 2020-21 summer of cricket is worth and it will not pay anymore.’^[57] Foxtel, which pays $110m annually, has also reportedly paid less than it was contracted to pay, though it remains uncertain as to whether it will also refuse to meet the further due payments.

Despite the problems, acting CEO of CA, Nick Hockley, has stated that he is confident CA can provide a successful summer of cricket^[58] and, if it does and the broadcasters refuse to pay what was contractually agreed to, then both Seven and Foxtel would be in breach of contract. There does not appear to have been any specific terms as to the players CA had to guarantee would be available for competitions in the BBL, meaning the broadcasters would have to rely on it being an implied term that major players would participate, should the matter end up in court. It is also suggested there may be other motives for Seven taking such a strong stance with CA since it has been reported that Seven lost more than $60m in televising cricket in the pre-COVID 2019-20 season. It is reported that free to air channels which have broadcasted cricket, namely Channel Seven and Channel Nine, accepted losses from televising it as they saw it as a ‘loss leader’, allowing them to promote their network shows for the upcoming new rating season. However, as it will almost certainly be harder to sell advertising because corporate money will be tighter as a result of the pandemic, Seven does not appear willing to follow that strategy this season.^[59]

It is also suggested that it is significant that the people who were involved in the negotiations are no longer working at either CA or Seven. Thus, Seven’s present strong stance with CA reflects the view of present boss, James Warburton, that it was a bad contract, one he wishes to get out of, or at least one where he wants to reduce the amount Seven has to pay. While Warburton has labelled CA as ‘the most incompetent administration’ he has ever dealt with, that could be seen as wanting to shift the blame for the Network’s present problems onto the CA administration. However, it should also be noted that, when CA parted ways with its former CEO, Kevin Roberts, it had scoffed at his suggestions a difficult season lay ahead, ignoring his view that one reason for strong cost-cutting measures was that the broadcasters would be looking for a discount. This does suggest that CA had not fully grasped the problems brought on by the pandemic. Furthermore, CA also ignored Robert’s suggestion that around $10m would be needed to create a bio-security bubble for the 2020-21 season, with it now being estimated the figure may be as high as $30m.^[60] This again suggests that CA underestimated the COVID-19 pandemic.

At the time of writing, this dispute has not been resolved and it was reported in early December that Seven had launched legal proceedings in the Federal Court. It has been suggested that Seven’s argument will be that it was the Board of Control for Cricket in India (BCCI) which ‘manipulated key changes to the summer schedule’ rather than the changes being for ‘reasons directly caused by the pandemic.’ It is also suggested that it will argue that there has been a breach of contract.^[61]

However, a minor contractual issue involving club and ground memberships appears to have been resolved.

D Club and Ground Membership

Another contractual issue arising from the reduced number of games and reduced crowd capacity at the grounds is whether club members who had already paid for club season tickets, or for membership of grounds such as the MCG and SCG, should be entitled to refunds, or at least a part refund. Both the MCG and SCG advised its members that it could not afford refunds due to the need for membership fees to cover on-going maintenance costs which were not reduced by non-use during the pandemic.^[62] The solution by both grounds has been to reduce the annual subscriptions by 30 per cent for the 2020-21 subscription period.^[63] It is the author’s view that this represents a satisfactory compromise, and, with both grounds having more than decade-long waiting lists, they can afford to lose some disgruntled members.

Clubs, likewise, indicated that they could not afford membership fee refunds and, while next year’s fees will not be due until early in the New Year, a solution for what happened this year could be to offer a similar reduction for the 2021 season. From a legal perspective it should be noted that unless there was a refund term in these agreements members would not have a legal basis on which to request a refund, though there is perhaps an argument such a term could be implied.^[64]

V Conclusion

There is no doubt that 2020 has brought unprecedented problems for Australian and world sport, requiring immediate changes to season schedules and the setting up of bio-security bubbles. It is a testimony to the management of professional team sports that the seasons were able to be completed. The loss of revenue has meant extensive cost-cutting measures had to be implemented, resulting in inevitable redundancies and salary cuts while broadcasting deals also had to be renegotiated. These all involved contracts and the pandemic has again highlighted that professional team sports rely heavily on contracts.

However, it has been suggested that COVID-19 has exposed ‘the tenuous nature of the business model for sport.’^[65] The reason for this comment is that, prior to the pandemic, the governing bodies of professional team sports were invariably spending rather than saving the revenue they received. Clubs, too, were spending all their income, not just on securing the best players, but also on coaches and other support staff in order to obtain an advantage over their competitors. Even before the pandemic broadcasters were indicating that the big deals of the last few decades were unlikely to be sustainable. Thus, there was probably going to be a need cut costs, but the events of 2020 ensured all professional team sports in Australia made significant cut-backs to their operations, many of which are likely to remain post-COVID.^[66]

It has been suggested, however, that these essential administrative cutbacks will have an impact on sports’ integrity units as underfunded administrations may result in sport being more susceptible to match fixing, particularly as cuts in player salaries may also make them more vulnerable to approaches.^[67] Thus, one of the long-term indirect consequences of the pandemic may be to the integrity of sports.

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^• Associate Professor, College of Business. Law and Governance, James Cook University

^[1] P Lalor and B Read, ‘AFL races to stay one step ahead’, The Australian, 30 July 2020, 24.

^[2] C Walsh and P Garvey, ’20-day stretch of August nights’ The Australian 22 July

^[3] It is worth noting that one advantage the AFL had over other Australian sports was that it owned its ground, Marvel Stadium, and it was able to use it as collateral for a $600m line of credit from the banks, although after being able to complete its season, the credit was not required: J Ralph, ‘The huge lump of dirt that made the AFL coronavirus-proof’, The Australian 1 April 2020, 32.

^[4] B Read, ‘V’landys locks in NRL for liftoff’ The Australian, 29 April 2020, 32.

^[5] B Read, ‘Risk assessment for NRL players’ homes,’ The Australian 27 April 2020, 24.

^[6] B Read, ‘NRL postpones first game in 23 years’, The Australian, 15 June 2020, 24.

^[7] M Monteverde, ‘Hectic fixture looms after teams delay’, The Weekend Australian, 11 July 2020, 34.

^[8] M Warner, ‘AFL faces a backlash from staff’, The Weekend Australian, 1 August 2020, 41.

^[9] C Walsh, ‘Jobs go as AFL faces $400m loss’, The Australian, 25 August 2020, 22.

^[10] J Ralph, ‘Sacked Fraser says it has changed forever’, The Weekend Australian 28 March 2020, 39.

^[11] M Carayannis, ‘Entire Bulldogs coaching staff stood down’, The Australian, 25 March 2020, 26.

^[12] B Read, ‘Clubs won’t die: Storm boss calls for calm amid the chaos’, The Australian, 25 March 2020, 28.

^[13] B Reed, ‘NRL sticks to launch dates but broadcast money question still up in the air’, The Weekend Australian 18 April 2020, 37.

^[14] D Ritchie. ‘Penrith to axe teams in savage cost-saving,’ The Australian, 1 April 2020, 30.

^[15] B Read, ‘NRL and players on brink of pay war’, The Weekend Australian, 12 September 2020, 35.

^[16] B Read, ’80 million reasons for NRL job cuts’, The Australian, 22 September 2020, 24.

^[17] J Pandaram, ‘Shock as darkest days rocks rugby HQ’, The Australian, 1 April 2020, 32.

^[18] W Smith, ‘Rugby set on fast track to restructure’, The Weekend Australian, 1 August 2020, 37.

^[19] P Lalor, ‘After letting the days go by for months, CA gets caught behind’, The Australian, 9 June 2020, 22.

^[20] P Lalor, ‘Roberts defends CA’s cost cutting plans amid push to hold T20 World Cup next year’, The Weekend Australian, 30 May 2020, 35.

^[21] P Lalor, ‘Cricket pushes the reset button’, The Australian, 17 June 2020, 24.

^[22] A Faulkner, ‘Crows greats slam breach’, The Weekend Australian, 9 May 2020, 38.

^[23] C Walsh, ‘You’re putting the entire game at risk’, The Australian, 3 August 2020, 28.

^[24] P Lalor, ‘Hand ‘n’ love spell the end for Swans’, The Australian, 19 August 2020, 22.

^[25] C Walsh, ‘Demons fined, Bennell banned for Covid breach’, The Australian, 21 September 2020, 23.

^[26] C Walsh, ‘You’re putting the entire game at risk’, The Australian, 3 August 2020, 28.

^[27] B Read, ‘Bennett fined $20k for his Covid breach’, The Weekend Australian, 8 August 2020, 33.

^[28] P Badel, ‘Broncos cop $140k whack for pub visit’, The Australian, 19 August 2020, 22.

^[29] See Carlton and Willliams v Australian Football League [1998] 2 VR 546 where it was held that players were bound to decisions of an internal sporting tribunal by the terms of the standard player contract.

^[30] C Walsh, AFL players win as pay battle resolved’, The Weekend Australian, 28 March 2020, 37.

^[31] W Smith, ‘Reds exiles still worth a second look’, The Australian, 26 May 2020, 22.

^[32] J Halloran, ‘RA makes players wait for broadcast deal’, The Weekend Australian, 30 May 2020, 34.

^[33] B Read, ‘NRL and players on brink of pay war’, The Weekend Australian, 12 September 2020, 35.

^[34] See C Davies and S Lanskey, ‘Cricket and the Law: Ball Tampering, Contracts and Enterprise Bargaining Agreements’ (2018) 24 James Cook University Law Review 77.

^[35] J Halloran, ‘Modern football coaches are hung out to dry in pandemic era’, The Australian, 22 July 2020, 24.

^[36] B Read, ‘A wealth of options for Cowboys’, The Australian, 21 July 2020, 24.

^[37] B Read, ‘McGregor can hold his head high’, The Australian, 14 August 2020, 28.

^[38] B Read, ‘D-day nears for Pay at Bulldogs’, The Australian, 13 July 2020, 22.

^[39] T Meyn, P Badel and B Read, ‘Seibold gone as Walters is backed’, The Australian, 26 August 2020, 28.

^[40] W Stanton, ‘Nothing and the lot before breakfast’, The Australian, 25 August 2020, 24.

^[41] Thomas and GDT Solutions Pty Ltd v The St Kilda Saints Limited [2008] VCC 721 (‘Thomas’).

^[42] Ibid, [99].

^[43] Ibid, [100].

^[44] Ibid, [101].

^[45] Ibid, [105].

^[46] Ibid, [129].

^[47] CAS 2008/A1464 Futebol Clube do Porto v J.

^[48] Thomas, above n 41, [81].

^[49] Ibid, [82].

^[50] J Stensholt, ‘Cricket fees next on broadcasters’ hit list’, The Australian, 15 June 2020, 22.

^[51] J Stensholt and B Read, ‘Code’s $150m TV deal haircut’, The Weekend Australian, 30 May 2020, 35.

^[52] W Smith, ‘A little good news drops into rugby’s lap’, The Weekend Australian, 12 September 2020, 31.

^[53] P Lalor, ‘Broadcasters ask CA: what did we pay for?’ The Australian, 27 August 2020, 24.

^[54] Ibid.

^[55] P Lalor, ‘TV threat to pull plug on cricket: “It’s a train wreck”’ The Weekend Australian, 29 August 2020, 7.

^[56] B Horne, ‘Cricket faces a TV fire sale’, The Weekend Australian, 29 August 2020, 33.

^[57] P Lalor, ‘Seven turns off the cricket cash tap’, The Australian, 16 September 2020, 24.

^[58] Ibid.

^[59] R Craddock, ‘Seven stumped by its summer cricket crisis’, The Australian, 14 September 2020, 22.

^[60] P Lalor, ‘Sacked CEO Roberts predicted cricket’s TV dramas’, The Weekend Australian, 5 September 2020, 38.

^[61] B Horne and P Lalor, ‘Seven takes fight with CA to court’, The Australian, 1 December 2020, 24.

^[62] The author is a member of both the MCG and SCG.

^[63] Both the MCG and SCG have subscriptions due in September/October which then covers the next 12 months.

^[64] The author is a member of the NSW Waratahs, Sydney Swans and Greater Western Sydney Giants and does not see any legal requirement for refunds in any of the membership agreements.

^[65] J Stensholt and J Halloran, ‘Coronavirus delivers $1bn reality check’ The Weekend Australian 28 March 2020, 37.

^[66] Ibid.

^[67] J Stensholt, ‘Cost cuts ‘a threat to sports integrity’’ The Weekend Australian, 5 September 2020, 35.