Sport increasingly threatened by the spectre of court action

Middlesbrough's latest big money signing is a lawyer. It is symbolic of a growing trend, argues Dan Tench, an expert on sport and the law
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The Independent Online
Middlesbrough Football Club will today have the leading QC George Carmen appearing on their behalf at their appeal before a Football Association Commission against the deduction of three points for their refusal to play at Blackburn earlier this season.

No one who had seen Mr Carmen in action would doubt the wisdom of seeking his assistance. None the less, his presence will raise for many the unwelcome spectre of increased intervention in sporting matters by lawyers and the courts.

This legal intervention can take many forms. In 1995, Duncan Ferguson felt it at its most severe when he was sentenced to three months in jail after head-butting an opposing player when playing for Rangers. In the same year, Manchester United's Eric Cantona was sentenced to two weeks' imprisonment - commuted to 120 hours community service on appeal - for his karate kick on a Crystal Palace fan. Despite the high profile of these two cases, criminal sanctions for participants in sporting events are still relatively rare.

A growing area of legal recourse is the seeking of damages for sporting injuries. Recently, Bradford City instigated legal proceedings on behalf of their player, Gordon Watson, against the Huddersfield Town defender Kevin Gray following a tackle on Watson by Gray which resulted in the Huddersfield player suffering a double fracture of the leg. Such actions are not always successful.

In 1994 Chelsea's Paul Elliott lost when he sued Liverpool's Dean Saunders after a tackle which ended Elliott's career. The judge decided that Saunders did not intend to hurt Elliott and that Saunders was not guilty of an unacceptable standard of play.

Players are not the only ones subject to damages claims. In a case which received widespread publicity last year, a referee of a colts rugby match was held liable for a serious back injury caused to a player when a scrum collapsed. The decision was confirmed by the Court of Appeal.

However, the judge was at pains to indicate the exceptional circumstances of the case - in particular that it was a colts game and that the rules of rugby were modified for such games, which was significant in giving rise to liability in this case. Interestingly, the plaintiff had also sued the opposing tight-head prop, but the judge held that there was no evidence that the prop did anything deliberate to bring down the scrum and so the claim against him failed.

Perhaps the most significant recent intervention by the courts into the sporting arena was the Bosman decision of the European Court of Justice. The Court decided that the restrictions on the free movement of players at the end of their contracts and the limit of three foreign players at each club were contrary to the laws of the European Union. The full ramifications of the decision are still not known (the changes regarding freedom of movement may be largely avoided by means of longer contracts) but a greater influx of overseas players into the English league has already taken place.

In effect the Bosman verdict decided the rules by which football governed itself could not apply, and for many sports bodies the biggest cause of concern is when their final authority is questioned in the courts. This is the threat that hangs over today's appeal. Carmen is certain to point out that, under the Premier League's Rule 19, a club failing to fulfil its fixtures shall only pay compensation to the opposing club.

In response Anthony Grabbiner QC, who is representing the League, will certainly respond that under Rule Seven of the Premier League's Power of Commission (agreed by all member clubs at its inception) the League can "impose such penalties by way of reprimand, fine, suspension, deduction of points, expulsion" or any combination of those punishments as it thinks fit.

If the FA's three-man commission upholds the deduction of three points, Middlesbrough will be tempted to take their case to a court of law. If they do, the precedents are by no means clear. Duncan Ferguson was successful when he sought to quash the decision of the Scottish Football Association to impose a 12-match ban on him for the head-butting incident for which he was sent to prison. The court decided that the SFA had not followed its own rules properly.

But the parameters of such actions are not clear. When the Football League took action against the Football Association in 1991 after the Football Association proposed to establish the Premiership, the judge held that the Football Association was not a body which was subject to the review of the courts.

The increasing legalisation of sport is reflected in the fact that presently nine Premiership clubs have lawyers on their boards. With football's financial rewards continually growing, and the legal issues getting ever more complex, this number is likely only to increase.

Dan Tench is a solicitor at Lovell White Durrant.