Football fever is rising as Qatar prepare to host the 2022 FIFA World Cup. In the build up towards what will likely be an action-packed month of football involving some of the world's best players, we take a look at the world of football and give our top tips to avoid scoring an own goal when it comes to contractual disputes.
Hand (or act) of God
Top Tip – Consider whether your contract has a 'force majeure' clause and how it would work if something unexpected happened.
Whilst the infamous 1986 World Cup goal was perhaps less of an act of God and more a deliberate act by Maradona, that did not change the fact that an unexpected event impacted the game. In the world of contractual disputes, unexpected events which occur can be dealt with by a 'force majeure' clause.
A 'force majeure' clause generally provides that one or both of the parties to a contract may be excused from performing its obligations when an event occurs which is outside the parties' control. A sandstorm interrupting this year's World Cup would be an example of such an event. Where an individual is at fault for an unexpected event (consider the unexpected biting incident between Uruguay and Italy in 2014) rather than an 'Act of God' (such as the 2010 Icelandic volcanic ash eruption grounding flights in Europe and causing Barcelona to have to travel 600 miles by bus to their Champions League semi-final), the at fault party cannot simply walk away from their contractual obligations. However, where there has been an unexpected event any liability, which arises as a result of breaching those obligations may be avoided if it falls within the definition of a 'force majeure' event under the contract or within the common law definition of 'force majeure'.
Moving the goalposts
Top Tip – Check what the contractual position is if the contract is affected by a change of law, or governmental action or regulation
Whilst referees may be able to change their decision after a VAR review (however controversial that may be), it is often too late to make changes to a contract once a dispute has arisen. Just like when FIFA introduces a rule change, parties will be required to comply with any changes to the law governing their contract, irrespective of the impact this has on their performance. You can include a change of law clause within your contract; this may prevent one party being unduly disadvantaged, for example due to increased costs or delays in performing the contract caused by a requirement to comply with government regulations or guidance.
Real Madrid v Gareth Bale
Top Tip – Understand your options for terminating the contract in the event of an irremediable dispute or breakdown in the contractual relationship
Many will remember Gareth Bales' seemingly never ending contract with Real Madrid (6 years to be precise) and wonder why nothing could be done to release him from the contract early, despite a clear breakdown in the relationship. The apparent answer was that the contract did not allow for it without Real Madrid paying a reported €1bn to buy him out. However, this is the kind of sticky situation which contracting parties may find themselves in if they have not fully considered the impact of the termination clauses within their contract. Equally, whilst you might want to make sure that if you are unhappy the contract can be brought to an end, how do you ensure that your contractual partner cannot walk away simply because the contract doesn't suit them anymore?
Clear provisions on how a contract is to be ended should be contained within the contract. Consider for example whether a notice period should be provided, whether parties should be provided with an opportunity to resolve issues if they're not happy with each other's performance under the contract, and how parties can terminate the contract when a dispute is not capable of remedy.
Choosing your allegiance
Top Tip – Consider carefully which country's laws you want to govern contractual disputes
Just like the difficult decision that the Xhakas' or the Boatengs' faced when deciding which national team to play for, it can be difficult to decide which country's law best suits your contract. There are numerous commercial and legal reasons why a specific jurisdiction will be more advantageous than another.
Moreover, not many football teams get the advantage of choosing their referee (as much as they would like to), but when drafting a contract there is scope to choose who you would like to referee your contract dispute. Alternative dispute resolution clauses can be added to contracts, allowing parties to agree to a specific forum for resolving disputes and in turn try to avoid having their dispute judged by the court. A dispute can be determined by a mediator, arbitrator or expert, depending on the parties' preferences, with the aim of obtaining a swifter, more cost-effective resolution.
Whilst our top tips will go some way to getting you in a good position to deal with any kind of dispute which arises, you should ensure that you carefully consider your tactics, research your opposition and understand the potential impact of a dispute in advance of one arising. And remember, if things go wrong, it is better to seek back-up in the form of legal representation than to go it alone.