Promoters agree to promote and fighters agree to fight. In the midst of the Corona Virus global pandemic, however, neither are likely to be able to fulfill their obligations.
So what happens if a fighter refuses to compete at a scheduled event because of the pandemic or if a promoter refuses to try to host cards?
Two legal principles are potentially triggered. The doctrine of ‘frustration’ and the contractual tool of ‘force majeure’ clauses.
If a promotional contract is silent on the matter the common law doctrine of frustration may be triggered. Frustration occurs where, through no fault of the parties, circumstances become radically different from that which was undertaken by the contract. Basically the contract cannot be completed. For a contract to become frustrated the triggering event must have been unforeseeable at the time the contract was entered into and not be the fault of either party. Where a contract is frustrated it discharges the parties obligations under it.
Many promoter contracts, however, don’t leave much room for frustration to enter the fray. Instead ‘force majeure’ clauses are common in the industry spelling out exactly who bears the burden and what consequences may arise where an event cannot be hosted due to outside factors. Generally ‘force majeure’ clauses don’t specifically reference a global pandemic but contain broader language which may cover the situation. Whether a pandemic actually frustrates a specific contract or triggers a broader force majeure clause requires an analysis of the circumstances and the contract as a whole.
Below are some ‘force majeure’ clauses from various MMA promoter contracts. Some of them protect the promoter. Some of them protect both parties. Generally all of them operate to absolve the promoter from hosting events during a disruption due to an ‘act of god’ and do not give the fighter the right to argue that the contract is breached.
In short, if a party is looking for a remedy based on the current global sports shutdown, their first step is to review their contract and see if it addresses these circumstances. If their contract addresses the situation the analysis likely ends there. If the contract is silent the argument of frustration may enter.