The coronavirus pandemic has introduced sports fans to a legal term: force majeure.
It literally means “superior force.” In legal terms, it refers to an act of God. The pandemic, which has shut down the country and canceled sporting events across the globe, certainly qualifies.
The NBA has a specific force majeure provision in its collective bargaining agreement, stating that players lose about 1 percent of their salary for every game that is missed. NBA management and players are currently negotiating a way around it, and are trying to salvage their season.
The NFL, though, doesn’t have it spelled out. The standard player contract doesn’t have any language about a force majeure. Neither does the CBA. The only mention of this type of scenario comes in Article 19 of the NFL Constitution: “There shall be no postponement of regular-season games unless said game cannot be played because of an act of God or because of a state, federal or local prohibition.”
And changing the location or starting time of a game can only be done “with the written consent of both clubs and the prior approval of the Commissioner.”
Although the start of the 2020 regular season is still five months away, the idea of it not starting on time, or without fans, or not happening at all, is a distinct possibility.
On Thursday, the Broncos sent a note to season ticket-holders informing them that they will be refunded or credited for any game that is canceled or held without fans. The Rams also acknowledged to the Los Angeles Times that construction on SoFi Stadium may slow down and prohibit the stadium from being ready in September. And NFL chief medical officer Dr. Allen Sills said that football won’t be played until there is easy, quick, and widespread testing.
"As long as we're still in a place where when a single individual tests positive for the virus that you have to quarantine every single person who was in contact with them in any shape, form or fashion, then I don't think you can begin to think about reopening a team sport," Sills told NFL.com. "Because we're going to have positive cases for a very long time."
The NFL’s one mention of an “act of God” doesn’t cover a whole range of questions that will arise if the league cannot start its season on time, or cannot start at all. Will players still get paid? What happens to the schedule? And player contracts? And next year’s draft?
This past week, I got a few answers after speaking with attorneys connected to both players and management. But there are several unanswered questions as well, as this is the first time that a non-labor situation has threatened an NFL season (the league even continued mostly unabated during World War II).
Commissioner Roger Goodell and the owners likely have control over the schedule and can unilaterally make decisions on season structure, scheduling, and playoffs. If the NFL wants to start the season in November, or shrink the schedule to eight games, or alter the playoffs, Goodell and the owners probably can do whatever they see fit. After the 57-day player strike in 1982, the NFL implemented a nine-game regular season, but expanded the playoffs to 16 teams, with no byes.
But the owners and the NFL Players Association still need to work together, because there are ancillary issues. If the NFL tries to conduct a 16-game schedule that starts later in the year, it potentially could run into the start of the 2021 league year next March, which would present issues about free agency and the like that would have to be negotiated with the NFLPA. If the NFL tried to compress the schedule, it would run into player-safety issues that certainly would have to be negotiated.
▪ Salaries and bonuses
The player contract doesn’t have a force majeure provision because it is essentially baked into the contract. Article 6 of every player’s contract states that players get paid 100 percent of their base salary “over the course of the applicable regular season, commencing with the first regular-season game played by Club in such season.”
So, it’s pretty simple: no games, no payment of base salary or per-game bonuses, which is the majority of compensation for most players. Players get their base salary and bonuses only when games are played, whether that happens in September, November, or not at all.
It gets trickier if the NFL were to condense the schedule to, say, eight games. This all could be negotiated with the NFLPA, but the likeliest scenario is that players are paid prorated amounts for games actually played, as in 1982.
If a player were set to earn an $8 million salary this year, and the NFL plays only eight games (with no bye week), that player could earn only $3.765 million for the season (8/17ths of his salary). Major League Baseball just negotiated a similar settlement with its players — that they would receive a prorated portion of their salary based on number of games played.
NFL owners and players also would have to negotiate what to do with performance incentives, though the likeliest solution is to prorate them as well.
If offseason workouts are canceled, players won’t earn workout bonuses (Julian Edelman has one for $300,000, for example), and other players will miss out on daily checks of $235. But players should be able to get compensated for participating in offseason workouts if they go “virtual” on Zoom or other apps.
If training camp is canceled, it means no weekly stipend of $1,150 for rookies and $2,000 for veterans.
Shortening the schedule or canceling the season likely would require more negotiations between owners and the NFLPA, most notably over the issue of how many games would constitute an accrued season for free agency and post-career benefit purposes.
If the season is canceled, the NFL and NFLPA would have a significant negotiation over whether to toll player contracts a year ahead, or allow players to become free agents whose contracts expired after 2020. MLB’s negotiation allows players to become free agents this winter, and grants players a salary advance in case the season is canceled.
But the new collective bargaining agreement, which runs from 2020 to the spring of 2031, wouldn’t toll. The deal would still expire in the spring of ‘31.
▪ 2021 draft, schedule
If the season is completely wiped out, there are questions about what happens to the 2021 NFL Draft and schedule. Do the Bengals get the No. 1 pick again? Would the 2020 regular-season schedule be shifted to 2021, or would the schedule rotation continue?
The short answer: Nobody knows. The NFL has bigger worries at the moment.
Clearing up any confusion
The NFL was smart to have Dr. Allen Sills, its chief medical officer, give an interview Thursday to soften the league’s stance about starting the 2020 season on time and under normal circumstances.
Jeffrey Pash, the NFL’s top attorney and Roger Goodell’s right-hand man, was well-meaning when he tried to put a positive face on the current situation during a Wednesday teleconference. The regular season is five months away, and there is no need to speak publicly about contingency plans and negative scenarios now.
But it did seem a bit tone deaf when he refused to acknowledge anything other than starting the season on time, which had the appearance of minimizing the seriousness of the pandemic.
On Thursday night, Sills gave a more realistic answer to NFL.com.
“I would say that’s everyone’s hope, that we are in a position to do that,” Sills said of starting the season on time. "But the reality is none of us know those facts for certain right now. We hope and pray for the best and prepare for the worst, realizing that is one potential outcome that we will be back fully in business playing games as normal in front of fans on schedule.
“But it's certainly not the only outcome. And I think what was implied there was to say we are not at a point where we are saying that is absolutely not going to happen, so we should continue our planning and preparations as if we're going to be able to do that.
“But obviously we’re going to have to evaluate that along the way. And follow what the recommendations are from public health officials and from our infectious disease experts and others.”
Good fortune for Tagovailoa
Alabama quarterback Tua Tagovailoa hired former NFL quarterback Trent Dilfer as his private coach once he entered the draft, and decided to train with Dilfer in Nashville this spring. That is turning into a fortuitous decision, given the pandemic and the significant hip injury from which Tua is recovering.
Tua won’t be able to visit any teams and have their doctors take a close look at him before the draft April 23-25, as the NFL banned all predraft travel. That includes players traveling to visit a team or a doctor, or a doctor traveling to visit a player.
But Tua was still able to get a medical re-check Thursday, similar to what he would have gotten through the NFL Combine. And per ESPN, the checkup was conducted by a world-renowned hip surgeon, Thomas Byrd, who is the Titans’ team doctor. All 32 team doctors and trainers were able to provide input, per the report, and the results were shared with every team as well. Tua’s representatives characterized the re-check as “overwhelmingly positive.”
Had Tua not been living in Nashville, he couldn’t have seen Byrd. And having the stamp of approval from someone of Byrd’s prominence should help ease concerns over Tua’s injury.
The iron of the league
Per NFL and NFLPA records, 23 players participated in 100 percent of their teams’ offensive snaps in 2019. Twenty-two were offensive linemen. The other was Seattle quarterback Russell Wilson.
Several other quarterbacks came close. Dallas’s Dak Prescott sat out just five of 1,121 snaps, and 10 others played at least 96 percent of snaps.
But Wilson was the only ironman. He never left a game because of injury. Most of his games were close; 14 of 18 (including postseason) were decided by one score. And in the other four games, Wilson would not relent a single snap to backup Geno Smith. Only one Seahawks pass attempt was thrown by someone other than Wilson, and it came from Josh Gordon.
It marked the second straight season that Wilson played in 100 percent of his team’s snaps. Kirk Cousins did it in 2018. In 2017, Matt Ryan was the only quarterback to pull off the feat.
On the defensive side, only five players participated in 100 percent of snaps in 2019. Four were safeties: Carolina’s Tre Boston, Philadelphia’s Malcolm Jenkins, Denver’s Justin Simmons, and Jacksonville’s Jarrod Wilson. The fifth was Arizona linebacker Jordan Hicks, who had missed 13 games the previous two seasons because of injury, one of the reasons the Eagles let him leave in free agency.
For New England, the most offensive snaps went to Joe Thuney (1,139 of 1,149), Tom Brady (1,134), and Shaq Mason (1,066), and the most defensive snaps went to Stephon Gilmore (952 of 1,008), Devin McCourty (946), Kyle Van Noy (814), and Jamie Collins (813).
Making it work (remotely)
Everyone in the NFL is kind of winging it and figuring out as they go along how to prepare for the draft and the season. New Browns coach Kevin Stefanski is stuck in Minnesota, and he may have to conduct the draft from there.
“It’s amazing what you can [get] done remotely,” he told reporters. .
Chiefs coach Andy Reid has set up a workroom in his basement, using one of his wife’s antique coffee tables.
“You know what? It’s not bad,” Reid told reporters. “I’m glad I coached at San Francisco State, because we had to work through a lot of things there. It was Division 2, non-scholarship, and everything wasn’t easy there.
"We had to have a guy climb up on a ladder to film practice. And the field, we had to have the players pick up rocks on the dirt field so we could actually practice. So those experiences help you in times like this, I think, when everything’s not quite perfect, to make it work.”
The NFL also may not allow teams to create war rooms with up to 10 people during the draft. A memo released this past week said that conditions could require teams to conduct the draft in a “totally remote” fashion with the picks being made in “personal residences, with a clear prohibition on any number of club personnel gathering in one residence.”
New Orleans was awarded the 2024 Super Bowl, its first time hosting since 2013, but may not be able to pull it off. Because the NFL is expanding to a 17-game regular season, which will push the Super Bowl back to mid-February, the 2024 game may conflict with Mardi Gras. A statement from the Saints Friday indicated that if New Orleans ultimately can’t host the 2024 Super Bowl, the NFL would work with the city to move the game to a year that wouldn’t conflict with Mardi Gras … Two weeks ago, it was Michael Brockers and Darqueze Dennard having free agency deals rescinded because of issues relating to getting a team physical. Now cornerback Eli Apple had his one-year deal with the Raiders called off this past week, though it is unclear whether it is because of a physical. The Raiders were going to pay Apple $6 million this year, all guaranteed, but instead he remains a free agent … Apparently there are certain players who don’t quite understand the gravity of this situation. This past week, video and pictures emerged of Lamar Jackson throwing routes with Marquise Brown and Antonio Brown, and of Prescott throwing with several Cowboys receivers. There was no social distancing involved, and germs easily could have been spread. A message to them, and anyone else trying to conduct life as normal: PLEASE STAY INSIDE … Headline I did not expect to see: “Cowboys sign Aldon Smith,” who hasn’t played an NFL game since 2015. Smith, who had 42 sacks in his first three seasons, has been suspended since the end of 2015 for a string of DUIs, and his reinstatement is not certain. But it would be great to see him get his life back on track and get one more crack at the NFL.
Ben Volin can be reached at firstname.lastname@example.org.