Covid-19 and Match Tickets - Will You Get a Refund?
There is still no final decision from England’s football leagues as to whether their 2019/2020 seasons will resume. Articles on Football Law have discussed how Covid-19 has affected football generally, and what initial guidelines England’s football leagues’ clubs must comply with to resume training.
An issue garnering attention recently is what will happen to football supporters’ season tickets or individual match tickets should the remainder of England’s football leagues’ clubs’ matches for their 2019/2020 seasons to which those tickets apply be cancelled or played “behind closed doors” because of Covid-19.
This article will (i) look at the announcements made already by some of England’s football leagues’ clubs and the refund or other options that are being offered or discussed in respect of those season tickets or individual match tickets; (ii) explain the law applicable to a situation where an event – that is, a football match(es) – is to be cancelled or played “behind closed doors” because of Covid-19 but for which a season ticket or individual match ticket was purchased; and (iii) consider how those refund or other options that are being offered or discussed sit with the applicable law.
Announcements, refunds and other options
Crawley Town FC, currently placed 12th in EFL League 2, released a statement on 18 May 2020 which announced:
‘Crawley Town Football Club can today confirm the refund procedure for the four remaining home games of the now curtailed 2019/20 season - subject to approval from the EFL.
The club have chosen to adopt a pro rata stance in regards to refunds with money being paid back being calculated on the cost of each cancelled league game. The club will also be offering fans the chance to renounce their respective claims, allowing the funds to remain with the football club during this period of financial uncertainty. This is in response to the countless number of fans that have asked for this to be made possible.
Pending approval from the EFL, all season ticket holders will be contacted via phone in a systematic A-Z surname process, beginning on the 1st June. Thereafter, fans who purchased individual match tickets for the remaining fixtures will then be contacted from the morning of the 15th June, with details of how to claim their refund. Any hospitality bookings will also be adopting the same procedure with each booking being contacted on a case by case basis’ (emphasis added).
Everton FC, currently placed 12th in the Premier League, released a statement on 17 May 2020 which announced:
‘Everton has confirmed all fans with tickets for the Club’s remaining five home Premier League fixtures of the 2019/20 season will be able to claim a refund due to the increasing expectation that - should the remaining games be played - they will take place behind closed doors.
Season Ticket Members will be entitled to a credit or refund on a pro-rata basis for the five games and will also be given the option to forgo part or all of their balance in order for the Club to donate that amount in full over to Everton in the Community.
The option for a portion - or all - of the available refund to be made available to Everton in the Community was introduced as a result of requests from fan groups and individual supporters who have been keen to show their appreciation for the Club’s charity…
Season Ticket Members who may not have renewed for the 20/21 season when the remaining games for the 19/20 season are confirmed will be given the opportunity to request that their refund entitlement be used as a credit towards their renewal for next season.
The deadline for renewals has also been extended from 28 May - with details of the revised date to be provided in the coming days.
Match ticket purchasers for fixtures that may be affected will receive a refund in full. Fans who have purchased tickets via Club partner, StubHub, will not need to do anything, refunds will be processed automatically’ (emphasis added).
Replies to a question asked to Football Law’s followers on Twitter last week also indicated that Manchester City FC is offering (i) its season ticket holders a proportionate refund for those remaining matches of the Premier League’s 2019/2020 season that its season ticket holders will be unable to attend or alternatively an option of a like-value credit against future season tickets, individual match tickets or a stadium tour; and (ii) its individual match ticket holders a refund for the individual match that its individual match tickets holders will be unable to attend. There has also been a statement from Leeds United FC setting out a phased refund for individual match tickets and indicating that a later statement is to be released in respect of season tickets.
This author is sure that there are other clubs from England’s football leagues that have released statements or contacted their supporters’ seasons ticket or individual match ticket holders about refunds or other options of the kind stated above. Further, there are likely to be other options that clubs may consider offering its fans in conjunction with or as a an alternative to those options stated above, such as clubs offering fans the ability to watch the match(es) they are unable to attend by a private live stream or club TV service, subject to a club’s 2019/2020 season resuming and pre-existing broadcasting agreements.
Nonetheless, and in summary, England’s football leagues’ clubs appear to be offering season ticket or individual match ticket holders the following options:
A proportionate refund (particularly in respect of season ticket holders) or a refund (particularly in respect of individual match ticket holders);
Credit against future season ticket or individual match ticket purchases or club merchandise/hospitality purchases; or
Foregoing a refund or credit and allowing the club to retain and/or a clubs’ nominated charity to receive the money paid by the supporter to the club for the season ticket (in particular the affected portion of it) or the individual match ticket.
Applicable law
Generally, a failure by one of England’s football leagues’ clubs to provide to a season ticket holder or individual match ticket holder attendance at a match(es) for which the season ticket or individual match ticket was purchased will amount to a breach of a condition of the contract between that club and the season ticket holder or individual match ticket holder.
In such circumstances, the season ticket holder or individual match ticket holder will be entitled to claim damages (money) for losses sustained by the breach of contract. [1] The season ticket holder or individual match ticket holder is, so far as money can do it, to be placed in the same situation as if the contract had been performed. [2] Such damages are likely to be calculated at a proportionate amount of the total cost of the season ticket or the cost of the individual match ticket (i.e. a “proportionate refund” or a “refund”).
That position will now be considered (i) with reference to England’s football leagues’ clubs individual terms and conditions applicable between them and their season ticket or individual match ticket holders; and (ii) alongside the doctrine of frustration and whether this affects a season ticket or individual match ticket holder’s ability to receive a refund.
Terms and conditions
Season tickets and individual match tickets will be subject to a club’s terms and conditions that are accepted by the supporter at the time of purchase of a season ticket or individual match ticket. Those terms and conditions will generally govern the contractual relationship between the club and supporter created as a result of such a purchase, in addition to general contract law principles and applicable statutes.
Those terms and conditions will vary from club to club but will usually provide or make reference to what shall happen in the event of a match being postponed, cancelled and/or required to be played behind closed doors. Accordingly, the terms and conditions provided by a club should always be the first point of reference when dealing with the cancellation of or a need to play behind closed doors a match(es) for which a season ticket or individual match ticket was purchased.
Taking Arsenal FC’s ‘Ticketing Terms’ as an example, its ‘General Admission Season Ticket Terms and Conditions Season 2019-2020’ state, amongst other things:
‘1.4 The Season Ticket remains the property of the Club at all times. The Season Ticket may be cancelled in whole or in part by the Club at any time without providing any reason. A proportionate refund will be given to you, in the absolute discretion of the Club and/or in accordance with the Terms and Conditions of Entry, in the event of any such cancellation.
…
4.3… the Season Ticket shall admit you to 26 matches played by the First Team during the Season at the Ground which consists of the 19 Premier League matches and the first 7 Relevant Cup Matches played by the First Team during the Season at the Ground...
11.1 No guarantees can be given by the Club that a Match will take place at a particular time or on a particular date. The Club reserves the right to reschedule any Match or, if necessary, play the Match out of view of the public, without notice and without any liability whatsoever. Your Season Ticket will, unless the Match is required to be played out of view of the public, enable you to attend the re-arranged Match…’
Further, Arsenal FC’s ‘Home Match Ticket Terms and Conditions Season 2019-2020’ state, amongst other things:
‘1.4 The Home Match Ticket remains the property of the Club at all times. The Home Match Ticket may be cancelled by the Club at any time without providing any reason. A refund will be given to you, in the absolute discretion of the Club and/or in accordance with the Terms and Conditions of Entry, in the event of any such cancellation.
…
2.4 A Home Match Ticket permits you to occupy at the Match the seat indicated on the Home Match Ticket or stated on the confirmation receipt/email of purchase in respect of your electronic entry card or such other alternative seat of equivalent value as the Club may, from time to time, allocate to you at its reasonable discretion…
5.1 No guarantees can be given by the Club that the Match will take place at a particular time or on a particular date. The Club reserves the right to reschedule the Match or, if necessary, play the Match out of view of the public, without notice and without any liability whatsoever.
5.2 In the event of the postponement or abandonment of the Match (or if the Match has, for any reason, to be played out of view of the public), you will be entitled to receive a full refund (including any booking and/or administration fee) on tickets purchased direct from the Club or its authorised agent or receive the equivalent ticket for the subsequent re-arranged Match (if any) via such application procedure as the Club stipulates, subject to any and all applicable terms and conditions. The Club will have no further, or other, liability whatsoever, including (but not limited to) for any indirect or consequential loss or damage including (but not limited to) loss of enjoyment or travel or accommodation costs.
5.3 Subject to paragraph 5.4 below, in order to obtain a refund on the Home Match Ticket, in accordance with paragraph 5.2 above, a written request must be received by the Club’s box office no later than 72 hours prior to the time of the advertised kick off of the Match. A refund (excluding booking and administration fees and subject to a cancellation fee) will only be issued on production of identification that the individual requesting the refund is the person to whom the Home Match Ticket was originally sold. For the avoidance of doubt, the final decision belongs to the Club’.
The ‘Terms and Conditions of Entry’ referred to in the two versions of clause 1.4 quoted above (so far as this author could understand from the titles of Arsenal FC’s many terms and conditions) are actually titled ‘Ground Regulations 2019-20’ and which state, amongst other things:
‘4. In the event of the postponement or abandonment of the Match, or if the Match has, for any reason, to be played out of view of the public, refunds (if any) will be made in accordance with the Ticketing Terms. The Club and each other Club Group Company will have no further liability whatsoever, including (but not limited to) liability for any indirect or consequential loss or damage, such as (but not limited to) loss of enjoyment or travel costs’.
The effect of those Ticketing Terms of Arsenal FC set out above is that, in summary, Arsenal FC will provide its supporters’ seasons ticket holders a ‘proportionate refund’ and its supporters’ individual match ticket holders a ‘full refund’ for the cancellation of or a need to play behind closed doors a match(es) for which a season ticket or individual match ticket was purchased. Accordingly, this position reflects the general contract law principles applicable to such circumstances as stated at the beginning of this Applicable Law section.
Further, that position was also announced in a statement Arsenal FC released on 22 May 2020:
‘… due to the COVID-19 pandemic our remaining home and away matches of the 2019/20 season will be played behind closed doors, with no fans present.
… we now intend to complete the 2019/20 season respecting new parameters, we are disappointed at the prospect of fans not being at matches in the near future. Like everyone, we look forward to the day when we are all able to safely return to matches.
… supporters will be entitled to a credit or refund for any match tickets or hospitality they have already purchased for future behind-closed doors matches in the 2019/20 season. Whether as part of a season ticket or for an individual match, supporters will be offered a credit for next season or a refund. This behind-closed doors credit will be in addition to the two unused cup credits already due to general admission season ticket holders.
The process to credit/refund supporters who have purchased match tickets and or hospitality for these fixtures will begin immediately. Full details and timings will be communicated directly to fans.
Information regarding season ticket and membership renewals for next season will be updated as soon as we have more clarity on future possible timings of the 2020/21 season’ (emphasis added).
Whilst that statement of Arsenal FC indicates that a ‘credit or refund’ will be offered, there is no obligation on season ticket or individual match ticket holders to accept a credit. Season ticket or individual match ticket holders are primarily entitled to a refund. It also appears that Arsenal FC is not now requiring individual match ticket holders to follow the refund process set out at clause 5.3 of its ‘Home Match Ticket Terms and Conditions Season 2019-2020’ and instead Arsenal FC will make the initial contact in respect of a ‘creditor or refund’.
It is repeated for emphasis that the terms and conditions provided by a club should always be the first point of reference when dealing with the cancellation of or a need to play behind closed doors a match(es) for which a season ticket or individual match ticket was purchased. Those terms and conditions are likely to identify that a season ticket or individual match ticket holder is entitled to a refund for the cancelled match(es) or the need to play the match(es) behind closed doors.
Finally, should there be a clause in the terms and conditions provided by a club that seeks to prevent a season ticket holder or an individual match ticket holder from receiving a refund for the cancellation of or a need to play behind closed doors a match(es) for which a season ticket or individual match ticket was purchased, this is likely to be deemed unfair and have no effect where the purchaser of the season ticket or individual match ticket is a consumer (i.e. an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession). [3]
Doctrine of frustration
The doctrine of frustration is summarised as follows:
‘Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance’ (emphasis added). [4]
It is this author’s opinion that the doctrine of frustration would not apply in circumstances where, as seen above, a club’s terms and conditions include a clause providing for a season ticket or individual match ticket holder being entitled to a refund for a match(es) that is cancelled or required to be played behind closed doors. Such terms and conditions ‘[make] sufficient provision [for the supervening event]’. Whilst such terms and conditions do not refer to a match being cancelled or required to be played behind closed because of a worldwide pandemic, that is putting the cart before the horse; the terms and conditions have anticipated a situation where a match is cancelled or required to be played behind closed doors irrespective of the reasons for the same. [5]
However, if a club’s terms and conditions do not include such a clause the doctrine of frustration will be of significance to a contract between a club and a season ticket holder or individual match ticket holder.
Whether an event amounts to a frustrating event is fact-sensitive. For example, in Krell v Henry the defendant had agreed in writing to hire rooms in the claimant’s flat in Pall Mall on 26-27 June 1902 in order to see the coronation procession of King Edward VII. [6] That contract made no express reference to the coronation procession. King Edward VII unfortunately fell ill and the coronation procession was postponed and, as a result, the defendant refused to pay the balance of the agreed rent for the rooms. The Court of Appeal upheld the Defendant’s refusal on the basis that ‘the coronation procession was the foundation of this contract, and that the non-happening of it prevented the performance of the contract… [and the non-happening of the procession] cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made’. [7] Whilst the written contract between the claimant and the defendant made no express reference to the coronation procession it was clear from the circumstances that both parties regarded the viewing of the procession as the sole purpose of the hiring. [8]
Krell v Henry is an exceptional case insofar as the doctrine of frustration is concerned, and each case is to be decided on its own facts. Nevertheless, there is a striking resemblance when considering that there was an illness (e.g. the pandemic) causing a specified event (e.g. a football match(es)) to be cancelled for which a contract was the sole purpose of entering (e.g. a season ticket or individual match ticket). It is this author’s opinion that it is likely that a match being cancelled or required to be played behind closed doors because of the outbreak of Covid-19 would amount to a frustrating event.
The Law Reform (Frustrated Contracts) Act 1943 (“LRFCA 1943”) provides for most of the legal consequences of frustration, including in respect of a scenario of the kind being discussed in this article. The legal consequences of the frustration of a contract between a club and a season ticket holder or individual match ticket holder will be that the parties are discharged from further performance of the contract and:
Money paid before the frustrating event can be recovered (LRFCA 1943, s. 1(2)); and
A party who has gained a valuable benefit under the contract before the frustrating event occurred, may be required to pay a “just sum” for that valuable benefit (LRFCA 1943, s. 1(3)).
Accordingly, the consequence of the frustration of a contract between a club and a season ticket holder or individual match ticket holder is likely to be that the season ticket holder will receive a “proportionate refund” and the individual match ticket holder will receive a “refund”.
How the refund or other options sit with the applicable law
Looking at the refund or other options identified above in turn:
A proportionate refund (particularly in respect of season ticket holders) or a refund (particularly in respect of individual match ticket holders.
This is the appropriate and primary option that should be offered.
Credit against future season ticket or individual match ticket purchases or club merchandise/hospitality purchases.
Whilst England’s football leagues’ clubs are not precluded from making this offer, a season ticket or individual match ticket holder is not required to accept this offer and is entitled to be offered a refund. Considering the uncertainty that still looms as to when attendance at football matches will be reallowed, a credit may not be the most useful option.
Foregoing a refund or credit and allowing the club to retain and/or a clubs’ nominated charity to receive the money paid by the supporter to the club for the season ticket (in particular the affected portion of it) or the individual match ticket.
Whilst England’s football leagues’ clubs are not precluded from making this offer, a season ticket or individual match ticket holder is not required to accept this offer and is entitled to be offered a refund. Nevertheless, considering financial difficulties such clubs who have smaller financial resources may be experiencing, or where any of those clubs’ nominated charities’ purpose is apposite, this will be an attractive option.
Footnotes
[1] Chitty on Contracts, 33rd Edn (Sweet & Maxwell 2019), Vol. 1, 13-019.
[2] Ibid, Vol. 1, 26-001.
[3] Consumer Rights Act 2015, ss. 61-63 and Schedule 2, part 1, paragraph 2.
[4] National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 (HL) (Lord Simon) 700.
[5] Law Reform (Frustrated Contracts) Act 1943, s. 2(3).
[6] [1903] 2 KB 740.
[7] Ibid, (Vaughan William LJ) 752.
[8] (n1), Vol. 1, 23-033.
26 May 2020