As the NCAA and the NFL try to navigate their 2020 seasons amid frequent game postponements and live fan attendance, perhaps an analogy works to ask where things stand concerning force majeure clauses in commercial agreements and the various health-based restrictions that have made performance of many contracts impracticable, if not impossible.

Most business contracts contain a force majeure provision, which excuses performance of a contract due to unforeseen circumstances: floods, wars, civil unrest, government restrictions and, yes, sometimes even pandemics. Back in March and April, as we dusted off these provisions, we often found that the rapidly-spreading COVID crisis was likely covered by a specific term like “pandemic” or, more generally, by force majeure events like “government regulation” or “travel restrictions”—all of which were likely to apply to the closures and restrictions being implemented around the country and across the world. Even if contracts didn’t contain force majeure provisions, the parties’ performance obligations could in many cases be excused by the various lockdowns and business closures that were being ordered by health boards, governors and local executive authorities under traditional common law doctrines like “impracticability of performance” or “frustration of purpose.”

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