This independent and open-source initiative is based on a series of questions sent to leading international sports lawyers and academics from 52 countries worldwide. The aim is to provide an overview of the measures adopted at national leve against the Coronavirus pandemic
Stray Vyrjes Ronny van der Meij has written the Norwegian contribution.
Read the entire survey here: Law in Sport
NORWAY
By Ronny-V. van der Meij
What is the current status of the championships in your country (professional and amateur categories)? Suspension of any sports activity (training and/or games?), championship over?
The Norwegian professional football season (1st and 2nd divisions) was scheduled to begin on 5 April 2020. Lock down measures were imposed early during the outbreak of the pandemic by the Norwegian government. The immediate impact on football was postponement of the professional leagues and a ban on organized training that applied to both professional and amateur sports.
Fortunately, the measures seem to have brought the situation under control as illustrated by the steep decline of diagnosed patients in the graph below: [93]
As a consequence, the ban on organized training was lifted for the premier division for men. Clubs belonging to the men’s premier division has from 7 May 2020 been allowed to organize trainings for up to 20 persons in accordance with prescribed guidelines, first made available to the clubs and later published by the Norwegian Football Federation (“NFF”) for the public on 13 May 2020.
Kick off for the championship in the premier division for men is rescheduled to 16 June 2020.
The NFF has, on its official webpage, informed that the strategy to use the men’s premier division as a test pilot with the aim to have the second division for men and the premier division for women follow 4 weeks later[94]. This was later shortened to two weeks. Training in the second division for men and premier division for women resumed on 25 May 2020.
For the children and youth categories, the Norwegian public health authorities have advised that it will recommend reopening of sports in general on 1 June 2020. The NFF has informed that the aim is to facilitate reopening of activities for said categories shortly after.[95]
Has the Government/Federation/League adopted measures relating to:
1. The return to team training (for example by way of guidelines, a minimum period of training before competition, social distancing norms and frequency of testing); and/or
The Norwegian Football Federation has published a handbook to its members to help ensure that activities of the clubs are conducted in accordance with the recommendations of the Government.[96]
The handbook is detailed and the applicable guidelines varies between the categories.
The general guidelines are as follows:[97]
1. One person shall at all organized training be defined as responsible to safeguard that the governments anti infection rules are followed.
2. There shall be maximum of 20 players (10 in the ages between 6 – 9 years) per group. A leader shall be present in each group to ensure the governments anti infection rules are followed.iii. A distance of one meter or more shall be kept, both within the group and other groups. This also applies at arrival to training and separation in groups.
3. Activities where the players competes for the ball or is in physical contact with each other are not allowed.
4. Heading and touching the ball with hands is allowed.
5. The ball shall be cleaned between each training.vii. Cones and other equipment shall be cleaned before and after each training.viii. Shared wardrobes shall not be used.
6. Good hygiene routines must be ensured during the activities with Antibac available and routines for thorough hand wash before and after the activity.
The return to competition (for example by way of altered the rules and/or format of competitions, shortening of competitions, competitions to be played in specified locations, games behind closed doors, social distancing and testing frequency)?
The plan for return to competition is still a work in progress. At this stage, the first games for the men’s premier division have been scheduled. These will be played without audience and games between teams that are geographically close will be played first. The clubs have been divided into four regions and the teams within the regions will play home and away in the first six rounds.
The plan of the professional leagues is that all matches will be played. This means no shortening of matches played and potential timely prolongation of the competitions compared to an ordinary season.
Do players, coaches or staff have the right to refuse to return to training/play if they believe that doing so would be a threat to their health and safety or vulnerable members of their family? What, if any, are the legal provisions in place to protect players, coaches or staff in such scenarios?
In Norway legal provisions are in place to protect players, coaches and staff as employees under national labour law.
There is no specific regulatory framework in place for employees in the sports sector. These are, as other employees, protected through the mandatory provisions of the Labour Law Act as interpreted and supplemented by principles developed in jurisprudence and theory.
As a general rule, an employee cannot refuse to show up at work based on a subjective perception of infection risk.
Should there, however, be a risk for infection based on an objective criteria at the club in question (or the employee have specific risk factors in the family), the employee may have right to refuse going to work. This could for instance be the case if there is an outbreak or legitimate suspicion of an outbreak at the club. The same can be assumed to apply if the employee belongs to a category that is particularly exposed risk infection from the virus.
Under Norwegian labour law, the matter would be assessed on a case-by-case basis. Should there be objective risk factors present, it can be assumed that the employees of football clubs will have a right to keep away from their workplace acknowledged. The stakeholders in the Norwegian football market has had a responsible response to the crisis, hence, should objectively risk factors be present, it is unlikely that a club will try to force an employee to return to work.
What are the specific measures taken by:
The Government (unemployment benefits foreseen for workers in general? Other specific measures?)
The government has issued several regulations under a law named the Corona Act. The Corona Act has served as legal basis for the issuance of 7 specific regulations from the Government. In addition, the government has also issued 13 regulations based on another law called the Anti-Infection Act.
Within football, the expansion of the employers right to use temporary layoffs (with corresponding compensation of at least a portion of the employees salary up to EUR 54,946 per year for 18 days) has created academic discussions within the football industry in Norway.[98]
In the absence of actual sports to cover, the doors opened for sports law discussions in the tabloid press and the hunger for action created topics like “Give us a trial!”.[99]
Initially, there were collective discussions between the Professional league (the Clubs) and the Norwegian players union (NISO).
The first legal question pertaining to the use of temporary layoffs was if the measure is an applicable remedy available to the clubs with a challenging economic situation. During the discussions some clubs sent notification to players that they would be laid off temporarily. At the time notification was sent, it was questionable whether or not the clubs had suffered an actual income loss. It could also be questioned if the alleged economic challenges of the clubs was caused by the outbreak of the Corona pandemic.
In the collective discussions NISO accepted that clubs could make use of temporary layoffs, provided that the clubs accepted that a temporary laid of player could resign and become Bosman players within 14 days. The latter consequence of a unilateral decision by an employer to temporary layoff an employee is prescribed by the wording of the Labour law Act § 15-3 (9).
Despite a solution being provided by the wording of the Labour law act § 15-3 (9) consensus in the collective discussions was not reached. Therefore, the matter was left to discussions amongst employers and employees at club level.
Some clubs chose to use temporary layoffs as a remedy to mitigate the expected economical impact of the crisis. Other clubs made use of partial temporary layoffs (the percentage of the position laid off has been assumed to be of relevance for the applicability of the employees right to resign in the jurisprudence of Norwegian courts). Finally, other clubs chose to adhere to their obligations to pay salary as agreed to in the player’s contract.
Significant dismay with clubs that temporary laid of players were expressed by NISO and players belonging to squads where temporary layoffs was used, but the question was not challenged legally before the training ban was lifted and the players were called back.
The Federation and/or the League (common funding? Others?)
The Minister of Culture has in the media promised compensation to clubs for shortfall in income due to restrictions on events. Details about the compensation was informed to be released at the end of May 2020.
Is there any specific position taken by the Association of sports doctors? If yes, are the federations bound by such a decision?
Public heath authorities provide binding regulations and guidelines applicable to sports in general and football in particular, see pt 2 a).
How are clubs currently tackling the salary issue (suspension of payment of salary (for how long)? No payment at all?)?
All clubs in the premier division have now called back their players.
Breach of contract in the form of delayed payment of salaries – save for the use of temporary lay offs - has not been reported publicly so far.
Do clubs negotiate with players, individually?
Yes, see answer to question 4 a).
Have there been any negotiations and/or decisions taken at a collective level between trade unions and clubs/leagues/federations?
Negotiations yes. Formal agreements no. See answer to question 4 a).
Does the national legal system recognise the concept of ‘Force Majeure’ (or any other concept having the same effect)? What are the contractual principles in your country at the basis of any decision taken by the Federation/leagues/clubs with regard to the suspension of salaries due to an event of force majeure like the coronavirus (ex. Termination of the contract? Suspensions of salary? Salary cuts and to what extent?)?
8.1. The standard players contract of the Norwegian Football Federation
Force majeure is a recognized concept under Norwegian contract law. The content of the principle and application will depend on the contract type and the business area the contract aims to regulate.
The standard players contract of the Norwegian Football Federation does not contain a force majeure clause. However, the contract makes reference to the RSTP and contains an annex with selected articles of the RSTP.
The concept of force majeure as developed in jurisprudence from FIFA DRC and CAS may therefore be relevant for interpretation of the standard players contracts in Norway as long as the result does not conflict with mandatory national law.
8.2. Contractual stability and exceptions under Norwegian Law
The general principle under Norwegian contract law corresponds to the bearing principle of RSTP art 13, namely, pacta sunt servanda (i.e. a contract duly and properly concluded between the parties must be kept, and non-fulfilment of the respective obligations is a breach of that contract.)
That contracts shall be respected and kept as agreed has been the parties is the general rule was codified already in 1687, through the act NL 5-1-2.
As exceptions to the general principle, it is recognised that unexpected and severe circumstances distorting the balance of the contract may affect the:
1. the validity of the contract
2. interpretation of the contractiii. the enforceability of the contract.
Force majeure is one concept that can influence placement of risk for unexpected circumstances in a contractual relationship although. In Norway force majeure is typically found in contracts or acts where there is a risk that a good or service being delayed. The function of the principle will usually be to relieve a debtor of risk for contractual sanctions due to breach of contract if force majeure can be demonstrated as cause of the delay.
Under Norwegian Law the general contractual principles of force majeure therefore do not directly influence questions pertaining to the validity of the players contract, its interpretation or enforceability without the reference to the RSPT.
Another provision that can provide relief for a party when unexpected external factors distorts the balance of a contract is the Agreement act § 36. This provision allows Norwegian tribunals to modify or set aside content of contracts that it would be “unreasonable” to enforce. This provision is usually applied to benefit consumers in contract with professional parties. It is therefore hard to imagine this provision being applicable to relieve a football club (as the professional party of the contract) if its salary obligations to a player.
What both the concept of force majeure and the Agreement Act § 36 can provide though is policy considerations. Policy considerations is a term frequently used in Norwegian theory on sources of law used to describe a category of various considerations to which a judge gives weight in determining whether the result in a legal controversy would be just or reasonable. In this sense such considerations have similarity to rules of equity known from common law systems. However, the authorisation of such a source of law as relevant is a peculiarity in the Norwegian legal system[100].
In this sense, the legal rationale of both the contractual concept of force majeure and the Agreement Act § 36 can provide arguments in a dispute under Norwegian law that resembles the concept of force majeure as developed in FIFA DRC and CAS practise. This will be illustrated through a brief elaboration on reference case of the matter in Norway, namely the Supreme Court case Notodden FK vs Hakala & Reinertsen[101].
8.3. Notodden FK vs Hakala & Reinertsen
Last time many Norwegian football clubs experienced income loss due to external factors was during the financial crisis. Some clubs cut cost through termination of players contracts which gave rise to a debate between clubs and players about whether or not economic struggle could justify termination of players contract under Norwegian law.
Three players contested the termination with support from the players association. A case between one club and a player was settled amicably, whereas the disputes between the club Notodden FK and the Players Terje Reinertsen and Jukka Hakala ended up in court and was finally ruled upon by the Norwegian Supreme Court.
The fundamental question of the case was whether or not such income loss gave valid grounds for termination of the players contract and chapter 15 of the Norwegian labour law Act.
In the case, the club alleged that the termination was legal with reference to chapter 15 of the Norwegian Labour law act. Whereas, the position of the players was that the players contracts of could not be terminated before the expiry of the contracts. In the players view a right to termination for the club could not be sustained by reference to the Norwegian labour law act, nor by way of interpretation of the standard players contract of the Norwegian football federation.
The court of first instance the court ruled in favour of the club and based its decision on of the Labour law act § 15-7, coinciding with the club that its economical situation constituted “valid grounds” justifying for termination of the labour relationship.
However, the case was to the appellate court. At the appellate court the players won and the Supreme Court later upheld the result of the appellate court.
As to the reasoning, the Supreme Court based its ruling on an interpretation of the standard contract of the Norwegian Football Federation, not § 15-7 of the Labour law Act.
In its ruling the Supreme Court inter alia held that in order to be admitted terminating the contract the club had to document:
1. Significant weakening of the clubs economy
2. That the documented weakening of the clubs economy was compared to realistic budgeting.
3. That the club was not aware of the potential income loss in sponsorship when it entered into the labour contract.
Assessing the facts of the case the Supreme court held that the club was aware that the sponsorship income could be reduced and concluded that the termination of the players contracts was unlawful.
The standard players contract of the Norwegian Football Federation was changed after the ruling. Therefore, the transfer value to a hypothetical case where the impact of the Corona virus is alleged as grounds for termination is limited.
What can be observed is that the criterions applied resemble typical elements of a force majeure assessment when the Supreme Court for instance holds that the club could not rely on circumstances it was aware of. To the extent general deductions can be extracted from the case it is probable that a realistic budget for a football club must reflect risk of fluctuations in income due to external factors. According to the premises of the Norwegian Supreme Court this include risk factors the club can have influence on but not control of, such as for instance relegation and sponsorships. Most risk factors and significant revenue fluctuations are part of the game under the European Model of Sports. The threshold for termination of players contracts in Norway can therefore be assumed to be high.
Under the current situation a club should therefore expect to be required to fulfil its contracts with committed salary level during the Corona pandemics as long as the impact does not become significantly more severe than the outlook is today.
Is there any official reaction at national level to the FIFA guidelines on Coronavirus?
Not to my knowledge.
Have there been significant developments (e.g. termination/ renegotiation/reduction of consideration/claim for damages) relating to agreements with:
1. Broadcasters
In Norway, Discovery holds the broadcasting rights to the premier and second division for men.
The agreement provides a revenue of approximately EUR 36,600,000 per year and is one of the main income sources for Norwegian clubs.
Negotiations are ongoing. At the time of writing, the parties have agreed payment throughout May 2020.
2. Sponsors
In general, a climate of solidarity appears to be the general attitude amongst all stakeholders of Norwegian football. That agreements will be renegotiated or terminated as a result of the virus impact of the economy of sponsors must be expected, but there has to my knowledge not been report of disputes related to such agreements.
What is the status of disciplinary proceedings/regulatory oversight (including, for example, anti-doping testing) in your jurisdiction (for example, have they been relaxed, suspended or is it business as usual)?
All areas of life is affected, including proceedings at ordinary tribunals as well as decision-making body of sports.
Anti-doping work and testing has also been reduced[102].
Have any football clubs (or related bodies) been involved in insolvency proceedings as a result of the coronavirus (e.g. administration/bankruptcy/liquidation)?
Not yet.
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