No Fans Needed - An Exploration of the Long-Term Implications of the Coronavirus on Seasonal Ticket Sales by Sports Teams
Photo Source: InSapphoWeTrustFollow, Fenway Park, Flickr (May 4, 2012) (CC BY-SA 2.0).
By Liliane Cooper* Posted: 04/12/2021
Many fans enter into contracts with the teams they support simply by purchasing tickets, either for a single game or as a season ticket holder.[1] The coronavirus and its restrictions on sporting events have impacted these contracts - which are often formed without fans fully understanding that they are entering into a legal agreement.[2] Teams are no longer able to hold games, and many governmental social distancing restrictions have forced fans to watch the games that can be played from the comfort of their homes.[3] This unprecedented impact begs the question: Is the coronavirus establishing a new trend for teams and their fans?[4] What is the future of contracts between teams and their fans?[5]
Unfortunately for franchises, the pandemic has resulted in a decrease in the sale of season tickets.[6] However, fans are still eager to follow their teams and have demonstrated that they are willing to continue purchasing tickets, despite possible restrictions preventing them from attending events in person.[7] This can be seen in how ticket sales are still occurring at a relatively normal level.[8] Unfortunately for many, obtaining refunds in response to both cancellations and uncertainty regarding the future impact of the coronavirus on sporting events is of the essence.[9] Many consumers and their attorneys have filed suit to recuperate the funds they have so eagerly spent to purchase tickets.[10] Without in-person participation at games, fans frequently demand repayment.[11]
Sports teams have managed to postpone payments in some instances, allowing for a slower refund process despite a surge in lawsuits.[12] Many sports teams have also relied on provisions of their contracts, such as force majeure clauses, to escape repayment.[13] Even though a clause such as the force majeure clause is not a “get out jail free” card, the coronavirus is an “act of God” beyond both fans and their teams’ control.[14] Contracts are enforceable by law and usually comprise a party promising to do something for the other in exchange for a benefit.[15] When a party breaches the contract by not fulfilling their end of the bargain, the other party may suffer a financial loss and seek remedy.[16]
Sports teams can invoke the force majeure clause and escape liability in cases where they can prove the contract’s “specific language of the clause itself and the facts making it difficult or impossible for a party to perform as originally expected.”[17] In short, the “test is whether under the particular circumstances there was such an insuperable interference occurring without the parties’ intervention as could not have been prevented by prudence, diligence, and care.”[18] However, business downturns and economic difficulty are typically insufficient to trigger application of a force majeure clause, as are mere increases in expense.[19]
In sum, fans are an integral part of the sports industry, and the impact of the coronavirus has challenged the relationship between fans and their teams by creating obstacles such as the inability to use season tickets.[20] Even though many teams “have deferred payment for season ticket packages, with several teams instituting or considering multiple deferrals,” the impact of sales and fan participation on live game attendance is unpredictable.[21] The decrease in fan participation may exacerbate the current financial crisis and cause many sports teams to halt fulfilling some of their regular policies, such as refunding fans or issuing future credits.[22] There is hope, however, that the long-time love affair between fans and their sports teams will help these two parties devise policies that will allow both to thrive, despite the limitations caused by the coronavirus pandemic.[23]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Wi
[1] See Jarrett Bell, NFL provides ticket-refund assurances amid coronavirus concerns, but teams vary on flexibility for season packages, USA Today (May 7, 2020), https://www.usatoday.com/story/sports/nfl/2020/05/07/nfl-coronavirus-ticket-policy-refunds-teams-season-sell-packages/5178793002/ (noting that fans readily spend money on ticket purchase and that refund policies are one way for NFL teams to connect with paying customers).
[2] See COVID-19 Refund Policies for Season Tickets, Season Passes, and Annual Festivals, Seyfarth (May 6, 2020) (hereinafter COVID-19 Refund Policies), https://www.seyfarth.com/news-insights/covid-19-refund-policies-for-season-tickets-season-passes-and-annual-festivals.html (noting that many consumers “perhaps unconsciously imagine” money paid for ticket to be placed in lock box).
[3] See id. (noting that many sports and live entertainment events have been postponed or cancelled).
[4] See Bell, supra note 1 (emphasizing that “everybody understands that this year is an aberration” due to impact of pandemic).
[5] See Marianne Bonner, What is a Legal Contract?, Balance Small Bus. (Sept. 17, 2020), https://www.thebalancesmb.com/what-is-a-legal-contract-462462 (noting elements of contract).
[6] See COVID-19 Refund Policies, supra note 2 (emphasizing negative effect of ticket sales on different organizations).
[7] See id. (noting that some sports teams are actually experiencing spike in ticket sales).
[8] See Bell, supra note 1 (noting that many sports teams are remaining optimistic about ticket sales).
[9] See id. (suggesting that close to thirty-two leagues have confirmed uniform refund policy for those who purchased tickets directly from club).
[10] See COVID-19 Refund Policies, supra note 2 (noting surge in class action lawsuits due to cancellations caused by COVID-19).
[11] See id. (suggesting that many fans want to be refunded for payments made in advance on their tickets).
[12] See Bell, supra note 1 (noting that teams are "giving fans some confidence that if things don’t go as planned, they’re protected").
[13] See Janice Reicher, et al., Force Majeure and Contractual Non-Performance During the Coronavirus Pandemic, Farella Braun, and Martel (Mar. 19, 2020), https://www.fbm.com/publications/force-majeure-and-contractual-non-performance-during-the-coronavirus-pandemic/ (noting availability of force majeure clause as justification for non-performance of contracts).
[14] See id. (providing clear explanation of force majeure clause).
[15] See Bonner, supra note 6 (noting definition of contract).
[16] See id. (suggesting what constitutes breach of contract).
[17] Reicher, supra note 14 (noting instances when force majeure clause can be invoked).
[18] See id. (stating test for applicability of force majeure clause).
[19] See id. (noting that certain events are not excusable under force majeure clause, although increases in expense may be excusable where “contractual act has become impossible or impracticable due to an excessive, unreasonable, and unbargained-for expense”).
[20] See Bell, supra note 1 (noting different challenges faced by sports teams due to effect of COVID-19).
[21] Id. (noting uncertainty and cautious optimism of many fans and sports teams due to negative impact of COVID-19).
[22] See COVID-19 Refund Policies for Season Tickets, Season Passes, and Annual Festivals, supra note 2 (suggesting financial burden caused by COVID-19).
[23] See Bell, supra note 1 (suggesting that financial strength of leagues will help teams maintain their bargain on tickets issued to fans).
