Let's face it: there's a lot going on in the world. Between juggling personal responsibilities and endless zoom sessions with your team and athletic department, coaches have a lot on their plate. But as spring cancellations turned into fall furloughs, coaches across the country needing the 2020-2021 season to "show progress" are starting to comb through the fine print of their contracts, looking for two little words: force majeure."
1. unforeseeable circumstances that prevent someone from fulfilling a contract.
2. irresistible compulsion or greater force.
Commonly known as the "God Clause," force majeure are legal protections and a contract term that lets parties off the hook for obligations or performance that go unfulfilled due to events beyond their control.
Does COVID-19 qualify under foce majeure provisions?
On March 11, 2020, the World Health Organization declared COVID-19 to be a pandemic, although that event alone may not be enough to trigger the force majeure clause in your contract. Depending on the language in your fine print, some contracts can include additional requirements such as length of time the event must last in relation to your contract performance. In the past, the judicial system has provided limited guidance as to specific events that trigger force majeure clauses, the most common of which include "Act of God" or "government action." Traditionally, Act of God events refers to natural disasters such as earthquakes, floods, or tornadoes. Forces of nature that could not have been predicted or avoided.
With so much ambiguity, coaches should consult an attorney to advise if the NCAA's growing list of shutdowns and restrictions would be considered a triggering event.
An attorney may point out that in many instances for a coach to rely on force majeure to explain away meeting performance goals, they would have to prove:
Covid-19 was the direct cause to perform or delay performance
There was nothing they could personally do to avoid the event or outcome
Their non-performance was out of their control
What to look for in your contact?
While the specific words "force majeure" may not be spelled out in your contract, you may find words such as "prevented," "hindered," "impeded," "impaired," or "interfered with."
It is important to note: an attorney may advise you as a coach that it could be easier as a coach to prove that your ability to show progess or have success in the win/loss column has been delayed rather than to make a legal claim that success is physically impossible.
It's worth asking your attorney if you need to show that reaching agreed-upon pre-season goals with your sport supervisor have been impossible to meet? Instead, are you able to make the claim that program goals have simply been delayed due to the pandemic? In other words, the goals are still attainable, but more time is needed.
To learn more about how docUssist can help you manage your program documentation and protect you professionally from legal risk and liability. Visit us at www.docUssist.org
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