Football is faster, more commercial and under relentless media attention. But does pressure to succeed justify players suing each other?

Football players have started taking their fellow players to court for injury sustained on the field. While no-one can deny their right to justice, it is an ill wind for the game.

If the trend continues - it certainly shows no signs of abating -even coaches and managers could be held responsible for the actions of their players even though they cannot control them from the touchline. And with a limited professional career which sees retirement beckoning in their mid-thirties, players might become tempted to sue even when they have been injured as a result of a genuine accident in order to recover sufficient capital for their future.

Most damaging to football overall, however, will be if players become reluctant to tackle or challenge because winning the ball has been overshadowed by the threat of litigation. Even if the referee says a tackle is fair, there will be no guarantee against being pursued through the courts.

In 1985, the Court of Appeal sought fit to set down what standard of care should govern the conduct of players in competitive sports. In particular, it looked at those sports where the rules and regulations provided for some physical contact between players.

It held that players owe a duty to each other to take reasonable care having regard to the particular circumstances in which the participants are placed. A higher degree of care was required of a Premier League player than one in a local league. The duty of care has to be balanced with the taking of risks that players implicitly consent to by participating. The difficulty arises out of drawing a line between what has been consented to and what has not.

The rules of the game and the law do not make happy bedfellows. Their objective may be the same, but which should have precedence? Should it be the province of the courts to decide whether the actions of a particular player are negligent? If the match officials and the independent assessor - those who are closely involved in the game and the application of the rules - have adjudged a particular challenge or tackle within the rules of the game, when should the courts intervene? Should their decisions be in effect overturned by a third referee?

All cases involving player-to-player actions reaching the courts, whether criminal or civil, have had to rely upon the evidence of the match officials in order to determine whether the rules of the game have been breached.

Decisions made by players and match officials often are and have to be made in a split second. To reassess such decisions in a courtroom with the benefit of "expert" evidence and video technology cannot adequately deal with the realities of the situation in which the incident occurred and decisions were made.

The use of experts in player-to-player cases presents interesting points, not least of which are the experts' credentials. Will the courts make up their own mind or defer to the experts' knowledge? It is not inconceivable that a "Bolam-type" test could be adopted if a sufficient body of footballing experts consider the challenge to be within the laws of the game.

In the player-to-player claims, the club of the offending player is brought into the action under the principle of vicarious liability, being responsible for the acts of its employees committed in the course of their employment.

Of course, the degree of control by irate managers and coaches on the touchline is minimal. Yet, if the present trend continues, we may well see an extension of the duty of care so that coaches and managers face liability if they have been negligent in the advice and training of their players. One could conceivably see a situation where a player states in his defence that he was only playing as directed.

Insurers are faced with claims for loss of future earnings based on speculation as to the length of the career, bonus payments, international appearances, signing-on fees - all of which are as difficult to disprove as they are easy to allege. Before matters get out of hand, some actions should be taken.

The Professional Footballers Association and the authorities are getting together to seek to provide a scheme of no-fault personal accident insurance for all players. At the moment premiums are prohibitive and there are few players who have such cover. Most clubs do not offer such insurance cover as part of their overall remuneration package to the players. If an appropriate scheme could be drawn up, it may see an end to the current type of actions being taken.

No sport is above the law and, in appropriate circumstances, the law's intervention can be justified. However, the number of actions currently being brought appear to have little to do with upholding the rule of law or for striving to attain better standards of play. Maybe, with the knowledge that insurers are involved, there is a belief that they will pick up the tab.

It is to be hoped that the courts will provide a significant ruling as to the interaction of the law of the land and the laws of the game. There are those who call for football to put its house in order and punish more severely those who infringe the laws. But greater financial penalties and automatic match suspensions are unlikely to deter a determined individual pursuing his remedies in court if he is so minded. As in civil and criminal actions, where a criminal conviction can be cited as evidence of the fact of negligence, one can see a similar approach being taken in a footballing scenario.

Insurers will have to appraise whether they will continue to provide cover for clubs for vicarious liability under player-to-player claims, given the increasing number of actions being brought and the increased amounts to stake. The consequence of insurers not providing protection for clubs can only be hinted at - only the fittest and financially sound would survive.

For the good of the game, something must be done to stem the rising tide.

John Smith and John Webster

John Smith and John Webster are both insurance partners at international insurance law firm Davies Arnold Cooper.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances from John Smith (Tel. 071 936 2222) or John Webster (Tel. 061 839 8396).
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