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Not A Level Playing Field: Drafting And Interpreting Force Majeure Clauses Post Covid-19

Rugby Scrum
Thursday, 21 July 2022 By Nick McQueen, Adam Melling, India Seaton

Why are the  European Professional Club Rugby v RDA Television1  and  Football Association Premier League v PPLive Sports International2  cases of interest?

One recent case relates to rugby, the other relates to football.  Both cases concern the contractual consequences flowing from the suspension of games due to the Covid-19 pandemic.  Both cases arise out of broadly similar facts, but each involves a different strategic approach and results in a different outcome.  Together, they highlight important lessons for all businesses concerned with Covid-related and also general contractual breach and potential termination. In particular, they demonstrate that there is no level playing field when it comes to contractual protections.  Rather, when it comes to ascertaining liability and/or the ability to terminate following breach of a commercial contract, everything comes down to how well the game was played during contractual negotiations.

This article reviews the cases and then provides practical tips on drafting and interpreting force majeure clauses. Specifically, it looks at:

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Written by

Nick McQueen

Nick McQueen

Nick is a Partner in the Dispute Resolution team at Walker Morris.  Nick specialises in all aspects of commercial litigation and international arbitration. He is also known for his experience resolving disputes through alternative dispute resolution, including adjudication, expert determination and mediation. Although Nick acts for clients across a broad range of sectors, he has developed specific experience in the energy and infrastructure sector.
Adam Melling

Adam Melling

Adam is an Associate in the employment team at Walker Morris. He specialises in employment law with a focus on the sports sector and football in particular, advising clients on both contentious and non-contentious matters. 

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India Seaton

India Seaton

India is an Associate in the Sport Team at Walker Morris. She specialises in sports litigation and sport related dispute resolution. India also supports the wider Sport Team in commercial, corporate and general compliance work in the sports and media sector.

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