Force majeure validly invoked to terminate contract

European Professional Club Rugby v RDA (High Court) [2022]

Force majeure clauses and their operation have been brought to the forefront by the advent of Covid. This case was a relatively rare example of force majeure being successfully invoked. It is an interesting case for what the judge had to say about the motivations of the party seeking to terminate.


European Professional Club Rugby (EPCR) brought a claim for damages for wrongful repudiation by RDA Television (RDA) of a media rights broadcasting agreement between the parties relating to two premier European rugby union competitions (the European Champions Cup and the European Challenge Cup) for the 2018-19, 2019-20, 2020-21 and 2021-22 seasons. Certain minimum payments were due under the Agreement coupled with a percentage of revenues derived over and above a certain threshold from sub-licensing activities.

EPCR was under an express obligation to stage each Competition each Season and not to change the format of each Competition in such a way as to materially dilute the quality of, or materially devalue, the Licensed Rights.

Clause 26 of Schedule 6 concerned force majeure events. ‘Force Majeure Event’ was defined as "any circumstances beyond the reasonable control of a party affecting the performance by that party of its obligations under this Agreement including [amongst other things] epidemic".

Clause 26.4 provided that "if a Force Majeure Event prevents, hinders or delays a party's performance of its obligations for a continuous period of more than 60 days, the party not affected … may terminate [the] Agreement."

In March 2020, Covid-19 was declared by the World Health Organisation to be a global pandemic. EPCR had scheduled the 2019-2020 quarter-finals, semi-finals and finals of the competitions to take place between April and May 2020. In March 2020, EPCR wrote to RDA informing it of the suspension of these matches due to the pandemic. Due to Covid restrictions, none of the matches were rescheduled before the 2019-2020 season ended.

The RDA withheld the next instalment of the minimum payments. On 5 June 2020, RDA purported to terminate the Agreement, based on clause 26.4. EPCR maintained that by purporting to terminate as it did, RPA was in repudiatory breach of the Agreement. EPRC itself then purported to terminate based on that alleged repudiatory breach.

It was not disputed by the parties that the onset of the pandemic constituted a Force Majeure Event as defined. A pandemic apparently qualifies as an epidemic for the purposes of the definition and, in any event, it would be an event ‘beyond a party’s reasonable control’.


The Commercial Court dismissed EPCR’s claim that RDA had wrongfully repudiated the agreement, finding that just because both parties were affected (in different ways) by the same Force Majeure Event did not deprive the parties of recourse to clause 26.4. The "party not affected by the Force Majeure Event" in clause 26.4 had to be construed in the context of clause 26 as a whole and the Force Majeure Event definition. It distinguished between the party to whom performance was owed and the party whose performance has been prevented, hindered or delayed by the Force Majeure Event. The phrase did not have the effect of depriving RDA of the benefit of clause 26.4, simply because it had been affected in a general sense by the same circumstances. Such an outcome would be commercially absurd.

The judge commented that RDA’s motivation for serving the termination notice was irrelevant provided that it was factually entitled to do so. The fact that by serving the notice it might have been hoping to renegotiate commercial terms did not render reliance on the Force Majeure mechanism invalid.

As something of an aside, the judge commented that there was no real dispute that the withheld instalment of the minimum payment should have been paid (albeit then subject to a retrospective adjustment to reflect the games which were not played during the originally scheduled Season).

Points to Note:

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