Legally ‘Messi’ (Messy)… the new doctrine of ‘legal blackout’

Covid 19 has created unprecedented situations and the sports world has not remained untouched with its far-reaching impact. Covid 19 and resultant lockdowns and restrictions resulted into and created a certain ‘blackout period’ – during which literally nothing happened. Several social, political, sports and entertainment events were cancelled or postponed and rescheduled. The previously agreed and scheduled timelines were accordingly pushed beyond this blackout period. In several cases, the contracting parties saved their contracts and discussed and agreed to a ‘no-action, no-breach’ moratorium period. However, in several other cases, this blackout period created unclear situations. The controversy regarding Messi’s intended departure has brought to the fore one such situation.

Lionel Andrés Messi, regarded by most as world’s best footballer, currently plays a forward at La Liga club Barcelona. In 2017 Messi entered into a four-year deal with Barcelona, which is due to expire in 2021. Recently (on or around August 25, 2020), Messi informed his club about his intention to leave by exercising a clause in his contract allowing him a ‘free transfer’. Thereafter, he did not turn up for a pre-season medical test at Barcelona. While on one hand Messi seems to have made up his mind to leave Barcelona club, on the other the hand, if the media reports are to be believed, the club management too seems to be firm on its position of seeking the 700 million euros release fee as per the contract signed between the club and Messi.

In the contract signed by Messi, the buyout price or release price is stated as 700 million euros. In football context, a buyout clause price (or a release clause price) is the price that needs to be paid to the club in case the player wishes to leave before expiry of the contract. As per the contract signed by Messi, Messi could terminate the contract a year before its expiry, provided he did that prior to the cut-off date of June 10, 2020 (in pre Covid 19 era, the European football season was scheduled to end by this date). Factually, in the post Covid 19 world, the season ended on August 23, 2020.

I have not read or reviewed Messi’s contract with Barcelona, however, I am assuming that both side would have their own reasonable basis of holding on their respective positions. While the club may be able to rely upon the contract and defend its position ‘in letter’ (may not be ‘in spirit’), however, if one were to argue for Messi, some sort of creative jurisprudence would be required to evolved and argued.

While the ‘doctrine of force majeure’ and ‘doctrine of frustration’ are being commonly being used and relied upon by contracting parties to negotiate and settle out of the impact of Covid 19 on their rights and obligations under the contract, the said doctrines may not be of much help to Messi’s lawyers. This may call for propounding a new and novel ‘doctrine of legal blackout’ and arguing for declaration of the blackout period (the original schedule of the European football season) as an automatic suspension period where the rights and obligations of the parties cease to exist during the said blackout period and automatically revive upon expiry of the such blackout period.

In the instant (Messi’s) case, Messi was entitled to exit the club without any release fee, provided he exercised this right prior to June 10, 2020, which was the original date for the European football season to end. However, since the season started and ended late on August 23, 2020, the period for Messi to exercise his right to exit without paying release fee should also be extended accordingly. It may be argued that it was the event (end of football season) and not the date (June 10, 2020) that was relevant as the cut-off for the purpose of exercise ‘free transfer/ free exit’ right.