Sport and the Law : Jack Anderson, a lecturer in sports law at the University of Limerick, says those involved in Irish sport should consider a national sports disciplinary tribunal similar to that in New Zealand
Three minutes into an FA Cup fourth-round replay between Wolves and Charlton in February 1998, Kevin Muscat clattered into Charlton's Matthew Holmes. The tackle left Holmes needing a number of operations, including skin grafts and the insertion of a steel rod into his leg. Holmes later claimed doctors had initially feared his leg might have to be amputated.
Subsequently, Holmes initiated a civil action against Muscat seeking damages of 3.7 million. The compensation was sought primarily for loss of earnings as a result of the tackle, which Holmes's legal representatives claimed had ended his footballing career.
This week, in the London High Court, the parties announced a settlement, which took the form of agreed damages made without admission of liability by Muscat. Holmes settled for 10 per cent of his initial claim plus costs. The settlement effectively equates the tackle to a final bill of over 1.1 million, to be paid by Muscat's insurers.
The incident raises interesting questions about the relationship between sports governance, indiscipline and the law. In Ireland, the GAA, the IRFU and the FAI, and their playing membership, should take note of the circumstances surrounding the Muscat tackle. There is no doubt litigation arising from violent misconduct on the field of play will increase, though there are mechanisms by which Irish sporting bodies may effectively and reasonably limit their exposure to such liability.
Overall, and mainly as a result of inconsistently applied disciplinary procedures, it seems that civil actions are becoming the most effective means of deterring violent conduct in contact sports. In imposing financial liability on the injuring party, civil actions hit that party where it hurts the most - in the pocket. Equally, civil actions may now be the only satisfactory means of providing the injured player with adequate compensation for losses suffered.
In the context of sports violence, civil liability may attach in two ways. First, there is the intentional tort of trespass to the person (assault and battery) and, second, there is the tort of negligence. The difference between the concepts of civil assault and negligence is that civil assault is predicated on intention while an action in negligence is where the contact is normally unintended but lacking care.
Although Matthew Holmes had sued in damages for assault and battery, in practice, most "sporting" plaintiffs will attempt to sue in negligence as, given the robust, spontaneous and "heat-of-the-moment" nature of contact sports, it may be difficult to demonstrate that the defendant had an unequivocal intention to inflict injury.
Concentrating on negligence, it is clear that participants in contact sports have a duty of care towards each other on the field of play. The standard of that care is that which is reasonable in the circumstances. Case law suggests that in the circumstances of sport the factual standard of care revolves around the concept of "reckless disregard". In other words, where, in injuring an opponent, a player demonstrates reckless disregard for the safety and welfare of that opponent the injuring player may expose himself to liability.
One of the most influential cases dealing with sporting negligence is Paul Elliot v Dean Saunders (1994). In that case, both players - Elliot, then a defender with Chelsea, and Saunders, then a forward with Liverpool - went for a "50-50 ball" in a Premier League game in 1992. The evidence purported to demonstrate that Elliot had lunged at the ball with his right foot in an attempt to divert it away from Saunders. Despite the "flying" nature of this tackle, Saunders had continued his run and collided with the inner side of Elliot's right knee. The resulting injury effectively ended Elliot's career and the gravity of the injury and its consequences was deemed likely to influence the amount of damages awarded, as the plaintiff's livelihood was based solely on his ability to play football.
The English High Court, applying the test of reckless disregard, dismissed the case against Saunders. Two interesting points arose from the case and may be applicable to similar cases. Firstly, Elliot claimed that as a professional playing at an elite level Saunders owed him a higher-than-normal standard of care. The court dismissed that argument, stating that each case depended on its facts and individual circumstances.
Secondly, in attempting to demonstrate that Saunders had acted with reckless disregard for his safety, Elliot relied on four means of evidence. The evidence proffered is typical of all such cases. Video evidence was shown but rejected as being "two-dimensional" and open to unlimited interpretation. Equally, the opinion of expert witnesses based largely on photographic evidence was dismissed, and it is clear that in fast-moving contact sports it may be extremely difficult even with visual evidence to establish the necessary liability.
Next, the (typically) conflicting evidence of the parties was taken into account. Elliot claimed Saunders could have avoided the impact but instead had made a two-footed stamp on his prone leg, severing his cruciate ligament in such a way as to end Elliot's professional career. Saunders counter-claimed, arguing that Elliot's tackle was intimidatory and had led him to jump instinctively to avoid serious injury.
Finally, the judge admitted he relied heavily on the interpretation of the official at the game. Interestingly, the referee had given a free kick against Elliot as he had considered Elliot's tackle dangerous play. The linesman had agreed with the award of a free kick, as had the match assessor located in the stand.
Muscat's tackle on Holmes was not penalised by the referee. Overall, it must be noted that, as far as the courts are concerned, the referee, while an important factor, is not necessarily the final arbiter.
The Holmes incident, which, again, it must be stressed, produced a settlement without admission of liability, would have made an interesting hearing. Holmes had apparently received the support of all Charlton players as witnesses to the effect that Muscat had gone "over the top" in making the tackle. Moreover, Holmes had also enlisted a number of other players seriously injured by Muscat, including Newcastle United's Craig Bellamy.
It would have been interesting to see what consideration, if any, the court would have given to Muscat's disciplinary history. Muscat, now playing with Millwall and a current Australia international, has had, by any standards, a poor disciplinary record. In his eight seasons in British football - he also played for Crystal Place and Rangers - he has collected six red cards and over 75 yellow cards.
On the other hand, the injury inflicted on Holmes, while extremely serious and effectively career-ending in the top flight, did not terminate his career and he continues to play for Dorchester Town in the Premier Division of the Southern Football League.
Muscat's lawyers vigorously contested the plea that Muscat's tackle was the sole contributor to Holmes's retirement from the highest level, attributing the step-down to a subsequent hamstring injury.
Broadly speaking, the reckless-disregard test is now well established in cases of sporting negligence and the threat of legal action has been applied in England with notable effect. In 1999, for example, Bradford's Kevin Watson was awarded over 1.3 million in compensation for a tackle by Huddersfield Town's Kevin Gray. That tackle has been deemed the most expensive tackle in British football and legal history.
All who play contact sports in Ireland recognise and enjoy the physicality of their chosen sports. The Irish courts acknowledge that in playing such sports a participant assumes a certain level of risk. Not every foul exposes the perpetrator to litigation, but players know that every sport takes place within certain boundaries. Generally, the Irish courts will accept levels of contact that are ordinarily incidental, but no more, to the particular sport, as contact sports are not a licence for thuggery.
Adequate coaching, consistent disciplinary procedures, comprehensive insurance policies and the greater use of independent arbitrators will assist in keeping Irish sports out of the courts. Indeed, on the last point it may be a good idea for those involved in Irish sport to consider a national sports disciplinary tribunal similar to that in New Zealand.
A national "sports court" would help address the increasing perception that sport is handling its disputes poorly, inconsistently and partially.
In its independence it would be attractive to all sportspersons. In its cost-effectiveness it would be attractive to many national sports bodies who simply do not have the resources, competency or expertise to deal with the various sports-related disputes, including doping disputes.
Furthermore, such a tribunal, which could, for example, operate under the auspices of the Irish Sports Council, would in time generate a recognisable body of decisions that would act as precedent.
And with due deference to the sporting prowess of members of the Irish judiciary, the matter could be heard by a tribunal panel consisting of persons with expertise and experience in both sport and the law.
Finally, and returning to the issue of sports violence, while the late, great GAA commentator Micheál O'Hehir colourfully described them as "shemozzles", and football managers regularly dismiss them as "off the ball", Irish sporting organisations should be aware that the courts are with ever greater frequency calling incidental assaults what they really are: unacceptable, violent incidents that may expose the perpetrator to liability.
In sum, the so-called "hard man" or "enforcer" on the field must realise that the law also exists beyond the touchline.
