Law doesn't stop at the touchline
10I07I09
Law doesn't stop at the touchline
Mark
Harvey, Partner and sports injury specialist, Hugh
James
As the wounded Lions
return to their clubs, Sports injury lawyer Mark Harvey looks at
foul play in sport and the potential legal implications.
2009 saw a particularly
brutal encounter between the British and Irish Lions and a South
African side renowned for their physical approach to the game.
Whilst all spectators hoped for a bruising series where the winner
emerged from a heap of blood, sweat and tears, few anticipated the
highly controversial incidents that marred the Springboks’
victory.
From a legal stance, when
a player takes to the field he/she consents to the reasonable and
expected rigours of the game (Volenti non fit injuria as the
lawyers would call it) which could, of course, result in injury
through no deliberate fault of an opponent. They don't however
consent to being on the receiving end of deliberate foul play. What
few people realise though is that the same duty of care exists
between fellow players as between say a driver and a pedestrian,
and the penalties for breaching this duty could be just as
severe.
The recent test series
saw two clear incidents of foul play, both of which were subject to
intense scrutiny and debate in the media. If first we take the
issue of gouging; it seems like only a matter of time before
serious injury occurs and a player’s long term health and career is
compromised by this appalling act. During the summer arguably the
two best back row forwards in the world, Schalk Burger and Sergio
Parisse were banned for placing their fingers in the eyes of an
opponent. Although both were punished by the International Rugby
Board, had their victims suffered injury, both could have faced
criminal prosecution for assault and civil claims for damages.
The question is, had one
these victims been injured, in practice, would legal action have
been taken and would it be successful? A number of recent high
profile judgments have been handed down to the victims of foul play
in sport. In 2008 Manchester United trainee Ben Collett was awarded
a record £4.5 million in compensation following a reckless
challenge by Gary Smith of Middlesbrough which broke his leg in two
places and ended his hopes of a career in the Premier League.
Although Collett was yet to even be signed by the club as a full
time professional, the court were happy to calculate his loss of
future earnings based on his ability and attitude, and the opinion
of Sir Alex Ferguson. However, it is important to note that such
remedies can be granted to amateurs as well. In 1995 I successfully
represented the then current Welsh international rugby player Ricky
Evans in his case against Olivier Merle and the French Rugby
Federation. Merle head butted Evans in a ruck, causing him to fall
and break his leg. Evans not only lost his playing earnings but
also those from his job as a fireman as well.
Wales prop Adam Jones was
also forced to return home early from the tour and faces the
majority of next season on the sidelines following an illegal
challenge from the South African lock Bakkies Botha. Although Botha
was banned for two weeks following his shoulder charge, could he
have faced further sanctions? Although the courts would not have
been bound in any way by the ruling of the IRB it is possible that
in this case they would have found the offence to have been not a
far enough departure from the rules of the game. However, had
Jones’s injuries been more severe and had a direct effect on his
career or earnings then I wonder whether this might have actually
been tested in court?
The notion that foul play
in professional rugby has been eradicated in this new era of
professionalism and extensive media coverage was firmly dismissed
this summer. It is clear that even those at the pinnacle of the
sport are prepared to breach not only the sport's regulations but
also criminal law, and cause serious harm to opponents. As players
get fitter and stronger and the need to gain an edge over their
opponents increases it is imperative that any advantage is gained
without crossing moral boundaries. If serious injury does occur
from the kind of unsavoury conduct we witnessed in recent weeks it
is likely the perpetrator will receive severe punishment and maybe
even a criminal conviction, with the courts hoping to dissuade
others by making an example of the culprit. Let’s hope it doesn’t
come to that!
Ends
Contact:
Mark Harvey, Partner and sports injury
specialist (029 2039 1095 or mark.harvey@hughjames.com
Joe Purcell, Business Development Manager (029
2039 1061 or joe.purcell@hughjames.com
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