Professional foul? You'll be hearing from my solicitor

Can a player be held liable for the injury of an opponent? Or is it all part of the game? Roger Trapp looks at the high stakes field of sports law
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Much of the recent legal attention devoted to sport has centred on the march of commercialism. In particular, last week's guilty verdict in the inquiry into the former Arsenal manager George Graham's receipt of irregular payments is likely to have widespread ramifications,while after the third Rugby Union World Cup scores of lawyers are waiting to assess the impact of some form of professionalism on the previously amateur code.

But while the commercially minded are rubbing their hands in anticipation of not only that particular beanfeast but also the general influx of television- generated cash, colleagues in the litigation arena are reaping the benefits of a growing trend for participants in sports to sue somebody when they get injured.

The leading Scottish advocate Ronald Clancy attributes this to the increasing popularity of "potentially dangerous sports", such as martial arts and trampolining. But since most sports carry a risk of injury, some experts fear an explosion of claims from those who hurt themselves while indulging their pastimes in leisure centres and other "managed surroundings".

In a recent issue of Sport and the Law Journal, published by the British Association of Sport and Law, Mr Clancy identifies a number of cases contributing to the trend. Among them are a youth suing his local education authority after he broke his arm while his teacher demonstrated throwing techniques during a self-defence class; a woman suing her council after falling off a climbing wall in a sports centre; and a 14-year-old boy suing his PE teacher after breaking his neck when he dived into the shallow end of a swimming pool.

Edward Grayson, a prominent barrister specialising in sports law and author of Sport and the Law, adds credence to the idea of a tide of litigation by saying - according to the Lawyer newspaper - "If more and more victims can claim evidence that they have been wrongly allowed to suffer injury, they will take action."

Serious as it is in such cases, the development threatens to create even greater upheaval in the realm of such contact sports as football and rugby. Increasing commercialism brings higher stakes - and therefore a greater temptation to commit "professional fouls" and a greater impetus for not only players but also club owners and the like to sue if a dangerous tackle, say, curtails or even ends a career.

Criminal prosecutions have been if not exactly frequent at least not uncommon. In May, for instance, Duncan Ferguson, the Scotland and Everton striker, became the latest sportsman to be convicted of assault for an incident on the field when he was found guilty of deliberately head-butting an opposing player. A decade before, the Welsh international rugby player David Bishop pleaded guilty to common assault after he was seen punching another player in an off-the-ball incident during a club match. He was sentenced to a month in prison - reduced to a suspended sentence on appeal.

One of the precedents for the Bishop case was "R v Billinghurst", in which, according to Mr Grayson's Sport and the Law - an amateur South Wales rugby player "had the double misfortune during the course of a game (1) to break the leg of an opponent (2) who was a Borstal prison officer. The victim's principals were not content to lose his valuable professional services without an attempt to let similar offenders realise the consequences." Accordingly, the culprit became in 1977 the first rugby player to be prosecuted and convicted of assault occasioning actual bodily harm.

But if the criminal law is clear, the civil situation seems less so. Last year saw two high-profile cases from professional football end in apparently different outcomes. Last June, it was thought that - in the words of this newspaper's correspondent - "the door to litigation over injuries seemed to have been firmly shut" when the judge in the action brought against Dean Saunders found against the plaintiff, Paul Elliott.

By October, however, it seemed to have been pushed ajar by the out-of- court settlement of the former Northern Ireland international John O'Neill's negligence and assault case against John Fashanu. Mr O'Neill received pounds 70,000 after agreeing to withdraw the assault allegation resulting from the career-ending clash with Mr Fashanu during his debut game for Norwich City,

However, John Smith, who acted for the defendants in both cases, claims that both cases were in effect won by the defendant. Although a confidentiality agreement prevents him talking about the details of the settlement in the O'Neill case, he points out that the pounds 70,000 covered costs, which for a case of this type reaching court would account for a substantial part of that amount.

The crux of the Fashanu defence had been based on the argument that by choosing to play football, Mr O'Neill accepted the inevitable risks involved. But Mr Smith, a partner with the City firm Davies Arnold Cooper, which acts for the insurers for all Premier League clubs, says there is more to it than that.

He draws attention to the judge's statement in the Saunders case that there was a fine line between intention and recklessness and - more importantly - a similar division between recklessness and negligence.

"A high-speed game like football is not like working in a factory," says Mr Smith. "You have to make an instant decision." Consequently, there is a strong chance of being just a little too late, or too high with a tackle.

While proving that somebody had deliberately headbutted an opponent or thrown a punch at them might be relatively straightforward, it is more difficult to demonstrate recklessness.

Accordingly, he believes there have been no fresh cases since the Saunders decision.

Moreover, while the field of sports-injury litigation is constantly widening, there appear to be few instances of senior Rugby Union players taking legal action against each other. Those cases that have been brought have mainly been restricted to complaints against referees for not enforcing rules such as those designed to improve the safety of scrums, says Mr Smith.

But in the increasingly profit-oriented world of sport, where football transfer fees, for instance, seem to be in an upward spiral, there are still going to be people with grievances should tackles go wrong and players be badly injured.

The clubs tend to be insured against the loss of their highly prized assets in this way, but the players themselves - despite being highly paid - are by no means united in taking out such cover.

Lawyers, including Mr Smith, argue that players would not have to resort to the courts if some sort of no-fault compensation scheme could be established. Brendon Batson, deputy chief executive of the Professional Footballers' Association, said the organisation was examining the idea. While it encourages players to take out personal accident cover, it has not yet been able to come up with a package that is attractive enough to stop players feeling they do not have to resort to the courts for financial assistance.

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