We have pulled together the most interesting case law involving sportspersons who have been injured while playing sports and have claimed damages against another party. We have looked at cases in the UK and internationally.
In any sport, it is not always the injuring party who is open to be sued – players, clubs, governing bodies and referees can also find themselves subject to legal action, which will be explored in the case law discussed.
For any sports related injury legal case to succeed in an action of negligence, the victim must be able to prove three things:
- That he was owed a duty of care;
- That duty of care was breached; and
- The damage suffered was caused by that breach.
In football, all participants owe a duty of care to one another. In order to show a breach of that duty, conduct must be reckless and fall below the standard required of a reasonably skilful and competent professional player. It must be an act that is more serious than an error of judgement. Thereafter, the injury suffered must be foreseeable. For example, it must be the type of injury that one would expect from a foul or tackle. Given that, the test for negligence in the sporting world is a high threshold to meet.
In the glamorous, big money world of football, players are considered as assets on the club’s financial books and their fitness can not only affect the club’s balance sheets but it can also cost the player personally.
International cases concerning football injuries
Football Player Injured while on International duty?
Tensions, regarding sporting injuries, are particularly fraught between team clubs who pay the footballer a salary and the national teams who select their players for international duty. For decades, the team clubs argued that the national governing bodies should pay compensation to the clubs for releasing players.
One of the major turning points for those tensions came with the case of Sporting Club Royal Charleroi v Federation of International Football Associations(FIFA). This case concerned first division Belgian club, Royal Charleroi, who alleged that FIFA should pay them compensation (1.25 million Euros) for injuries caused to star player, Abdelmajid Oulmers, whilst on international duty, for Morocco. Royal Charleroi advised FIFA, prior to the match, that Oulmers was injured and should be rested. Despite this, FIFA insisted that Oulmers play in a non-competitive friendly match between Morocco and Burkina Faso. Oulmers’ injury was aggravated and he was unable to play football again for 8 months. Sporting Charleroi alleged that their failure to win their domestic championship was as a result of the loss of Oulmers.
Charleroi’s claim was supported by the G14, an association formed by Europe’s most powerful clubs, who were dissatisfied with UEFA decisions that affected them and felt that they required representation during decision-making. The G14, at the same time brought their own claim, in the sum of 860 million Euros, in costs that had not been paid to clubs whose players had been representing their country for free whilst clubs continued to pay their wages. In January 2008, and against the backdrop of the Euros, UEFA, FIFA and the G14 negotiated a guarantee that compensation would be paid to clubs releasing their players for the Euro 2008 tournament. However, this was under the obligation that all existing actions (including the Oulmers case) would be dropped. This meant that a Court never ruled on the Oulmers case.
In light of the above, UEFA & FIFA have both set up insurance funds to compensate clubs for injuries during international tournaments, such as the World Cup and the Euros. The funds tend to cover: temporary total disablement, permanent disablement and death. Compensation for temporary injuries is capped in the region of around £40,000 per week under the notion that when it comes to the biggest players, clubs can benefit from their marketing power and reap awards from commercial pursuits such as advertising/sponsorship etc.
The introduction of the insurance funds removed the potential for much of the liability disputes that surround international tournaments. UEFA & FIFA both recognise the contribution of clubs to international tournaments as well as the huge implications for them in terms of player injuries. The insurance funds were set up to settle club and national disputes before they get off the ground, and I’m sure Fiorentina won’t be best pleased with Mario Gomez’s hamstring injury (during this year’s Euros). If further investigations are required they will not have to pay for medical investigations and pay his entire wage package, if he requires a prolonged period to recover.
Footballers Injuries During European Football
Over the decades, the migration of footballers across the world has become more and more common due to the modernisation of football. Globalisation of the sport has resulted in increased international competitions, such as the UEFA Champions League, which has given domestic clubs the opportunity to play, more and more, in foreign jurisdictions. For example, in 1967 when Celtic won the European Cup, Celtic played 5 games to become crowned ‘Champions’. To win the equivalent today, UEFA Champions League, teams must play a total of 13 games. Therefore, the potential for players to be injured in foreign jurisdictions has greatly increased. With every match played abroad, players and clubs need to be cautious of not only their own country’s legal rules but also those in foreign jurisdictions, in which they are playing.
Differences in law across foreign jurisdictions
Given the Euros 2016, I have chosen to focus on the differences in the law of negligence of both Scotland and France.
The French law of negligence, in sports, is very similar to that which is applicable in Scotland. As in Scotland, French law is based on vicarious liability and focuses on the club who employs the player. Courts, in both jurisdictions, must focus on what actions are a common part of the game and give rise to certain risks, in any event, and what play is deemed to be reckless and lacking care.
However, there is one important difference under French law. Every person who is a French national or is resident in France, or is permitted to work or study in France, can claim from the state a basic level of compensation for their injuries – including those that occur whilst playing sport. Private actions will be brought only where enhanced compensation is sought. This could be for specific complex medical treatments or where there is a shortfall. Given that, the Court in France has developed a strict approach when interpreting what is an inherent risk of playing sport compared to their Scottish counterparts.
Unlike the Scottish Courts, the question is not whether a claimant should receive compensation for injuries caused by the negligence of the defender-player but instead, who should be liable for those injuries and how much should they pay – as the state is guaranteed to be there to provide some sort of compensation. The applicable law, in France, can be found in Articles 1382-4 Code Civil which states that a person, who causes damage to another, through any act whatsoever, is obliged to compensate the victim. Such acts can be intentional, through negligence conduct or by the person’s imprudence. An employer will be liable for the actions of their employees if the damage occurs during the course of their employment.
In France, actions against individual players is uncommon. All players must sign up to club insurance policies before they are allowed to participate and clubs are not allowed to enter competitions without having adequate insurance in place. Therefore, French players, who are injured will first of all look to the state compensation scheme, known as Caisse Primaire d’Assuance Maladie (CPAM). It is only where enhanced compensation is sought or where there is a shortfall in the CPAM award that an action can be brought against the defender football club.
Legal actions for sporting injuries, in France, may only be brought against a club in competitive games. Injuries that occur during non-competitive games, friendly matches or training sessions do not give rise to liability. It was for that reason that in one French case, the claimant’s action failed on the basis that despite the fact that he was injured, during the game of football, as a result of reckless play, the fact that it occurred during a non-competitive game meant that the defender club was not liable. This is in direct contrast to Scots Law.
As noted above, the French Courts also take a stricter view as to the voluntary assumption of risk in sport. For example, in one case, a claim failed despite the fact that the Court accepted that the goalkeeper deliberately threw the ball at the Pursuer’s head, with force, and as a result, he suffered a brain haemorrhage. However, the Court held that the throwing of the ball was a common risk of the game and being hit by the ball was a likely risk. This was despite the deliberateness of the goalkeeper’s actions.
In each of the above situations, it is likely that a Scottish Court would adopt the opposite decision.
UK cases concerning football injuries
Vicarious Liability and Likely Damages
Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC (2008)
18 year old Collett was playing for Manchester United in a match against Middlesborough FC. In the course of the game, he was tackled by the first defendant. The tackle was high and over the ball and, as a result, Collett sustained a fracture of the tibia and fibula of his right leg.
Collett pursued damages for injury, loss and damage caused by the negligence of Smith. Collett chose to pursue Middlesborough FC (rather than Smith himself) arguing that they were liable for their employee’s actions, given that he was connected to the club and acting in the course of his employment, as a professional footballer. In particular, Collett claimed for future loss of earnings as a result of not being able to pursue a successful career as a professional footballer and thereafter, as a football manager or coach.
Middlesborough FC admitted liability and it was for the Court to determine the final settlement figure.
Held: Award in excess of £4.3 million including:
General Damages: £35,000
Past Loss of Earnings: £456,095
Future Loss of Earnings: £3,854,328
Deliberate Intention to Injure
Where there is intention to apply unlawful force on the part of the assailant there can, in rare circumstances, be a civil action for trespass to the person, for assault and battery.
In the case of battery, the pursuer must be able to prove that there was an intention to apply force to the person of another. The slightest touch, without consent, constitutes battery. The problem with proving battery and assault in football and other contact sports is that the intention to harm or touch is difficult to prove given that the sports involve one player coming into contact with another player. If you are unable to prove the intention to apply force on a balance of probabilities, the action must be brought in negligence, as described above. Further, it is rare to pursue a case for battery in contact sports as most insurance policies covering sports injuries do not cover deliberate injuries.
In Alf Inge Haaland (ManchesterCity) v Roy Keane & Manchester United FC, Haaland was carried off the pitch at Old Trafford, in 2002, after a tackle by Keane, whereby he trampled on Haaland’s knee. By 2003, Haaland, was forced to retire from football after being unable to play a full 90 minutes claimed to be as a result of the knee injury. In an autobiography by Keane, he alleged that the tackle had been an intentional one and that prompted Haaland and ManchesterCity to pursue legal action. However, it later emerged that in fact the knee had been causing problems even prior to the tackle which led to Haaland admitting that the tackle was not the root of the problem.
The Reasonable Standard – Reckless Play
In the game of football, a case for negligence will fail if the pursuer is unable to prove anything more than an error of judgement. A defender must have acted recklessly, with lack of care, so as to breach his duty to exercise reasonable care in all the circumstances.
In Paul Elliot (Chelsea FC) v Dean Saunders & Liverpool FC, Elliot sued Saunders & Liverpool FC for causing a knee injury that ended his football career. Elliot first attempted to bring a case for battery but it was later discovered that Liverpool FC’s insurance would not pay out on such a claim as the policy excluded deliberate injuries. As such, it would not be in the best interests of Elliot to restrict the number of defendants and therefore he concentrated on a claim for negligence instead. Elliot proved that he was owed a duty of care by Saunders and that he had breached that duty, given the nature of the tackle. That was accepted by the Court, but Elliot was told that he also had to prove reckless play and as such, failure to exercise a reasonable standard of care in his tackle. Video evidence was submitted to the Court and considered along with evidence from match officials. The Court favoured the evidence provided by the officials in that Saunders was attempting to “play the ball” and had not acted recklessly. Given that, Liverpool FC was held not to be vicariously liable and the case failed.
It was in 1996, that a professional footballer finally won a case for an injury that occurred, during the field of play, as a result of another player’s actions. In McCord v Swansea City FC and Cornforth, the Court held that there was a duty to take such care towards an opponent as was reasonable in all the circumstances. McCord was playing for Stockport County and the defending player, Cornforth, played for Swansea City. Both players went for a “50:50” ball with McCord getting to the ball first. Cornforth arrived a split second later but placed his leg 8 inches above the ball, making contact with Cornforth’s leg. McCord’s leg was so badly broken that he was unable to play football again and his career was brought to an end. The tackle was described as a “dreadful tackle” and “one of the worst that had ever been seen.” The Court held that the challenge was dangerous and a serious mistake/misjudgement. It was not a deliberate act but nevertheless the defender was held liable for negligence because of his misjudged error in challenging for the ball.
Does a referee have a duty to take reasonable care?
The leading case in relation to referees is Smoldon v Whitworth and Nolan, whereby the referee was overseeing a game of rugby and was found to be liable after a player was left injured when a scrum collapsed dangerously. During the game, the scrum had collapsed, at least 12 times, but no foul play had been identified by the referee. The Court recognised that the consequences of a refereeing error can be severe and referees can be held liable for negligently officiating, in a match. However, the Court also considered that in fast moving games, referees could not reasonably be expected to avoid errors of judgement, oversights or lapses. Ultimately, the Court held that a referee owes a duty of care and the standard of care is what is reasonable in all the circumstances.
Smoldon is significant across all referee decisions as it refers to what should be expected as a ‘breach’ in a fast moving game. Turning to the international aspect of football, Smoldon remains relevant even out with the context of injuries. For example, the Football Association of Ireland reportedly considered the prospects of success in bringing proceedings, in 2009, after Thierry Henry’s handball just prior to France’s extra-time equaliser in the World Cup play-offs against the Republic of Ireland. The result meant that the Republic failed to qualify for the 2010 World Cup. In reality, taking into account Smolden and the current attitudes of The Court of Arbitration for Sport it is unlikely that the Football Association of Ireland would have had any success in such proceedings.
Concussion in Football
In relation to concussions on the field, more often than not players are reluctant to leave the field following injury. It is of course recognised that there is commercial pressure to keep a player on the field but in some cases, it is more prudent to prevent the risk of further damage.
To enable Clubs to recognise and manage concussion, the Premier League introduced a Concussion Protocol which provides that all matches must have a tunnel doctor to assist team doctors in recognising and diagnosing the signs of concussion. That doctor will be independent to the club and thus not subject to the commercial pressures associated therein. If a head injury occurs, the medical team will assess the player and he will be removed from the field of play if there has been a confirmed or suspected loss of consciousness. UEFA has also introduced similar provisions.
From a legal standpoint, it is important that we recognise the tests that require to be fulfilled in order to prove negligence.
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“Games might be and are the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which are instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein”
Cleghorn v Oldham  43 TLR 465