As the financial stakes in top- flight football heat up, players are now beginning to question whether their next tackle could lead to a yellow card or a multi million pound lawsuit. John Hewison, partner at Manchester-based law firm George Davies, is an expert on sports and entertainment law and asks if players, clubs and the authorities are aware of the extent of their liability…

1. RISKY BUSINESS
The financial state of the modern European game has been the pet subject of many sports columnists and plenty of bar room banter in recent times. The polarization of large and small clubs has never been more significant. The vast chasm between those clubs in the top divisions battling it out in European competition and those aspiring toward it becomes deeper ingrained with each passing season. The effects of promotion or relegation have more dramatic effects on the health of clubs than ever before.

Put simply, the financial impact of actions and decisions on and off the pitch can spell life or death in an instant for football clubs all over Europe. Actions off the pitch such as bad business decisions, lack of sponsorship cash and falling attendances can bode just as badly as a lack of goals from a new record-buy centre forward. Soccer is becoming risky business as clubs struggle to maintain solvency. Dozens of British clubs have been hit hard by falling into insolvency in recent years. This bodes badly not just for the clubs themselves, but also for the remainder who are keeping their heads above water. This is because danger lurking around the corner could topple many of these clubs into further decline

2. RUSSIAN ROULETTE
An increase in the number of high profile players targeted by missile-throwing yobs on the terraces last season has already prompted football clubs and the authorities to seek legal advice in order to establish where liability lies in the event of serious injury.

Although the safety of spectators has generally improved over the years, player safety has been overlooked. Incidents such as coin throwing, pitch invasions and assaults on players are hazards that largely go unpunished or undetected. It is a potential minefield because there is so much legislation that could be used in a court of law. For example, a claim of ‘unsafe working conditions’ could be leveled against some European clubs. Clubs, spectators and football associations could also be held responsible. Already, clubs are preparing legal contingency plans should a player become injured by a missile thrown by a yob or attacked by a spectator.

However, it is actions on the pitch, within the controls of the players that can potentially have the most devastating effect on clubs and careers. The threat of legal action by players (and clubs) affected by injuries sustained on the field of play increasingly hangs over the game like a dark shadow. The alleged threat by Alfe Inge Haaland to pursue a claim against Roy Keane is a topical case in point. The FA found the Manchester United captain guilty on two counts of bringing the game into disrepute. He was fined £150,000 and banned for five matches.

If a loss of earnings claim were to be leveled by any top-flight footballer then the calculation of compensation would be a mammoth task. The earnings power of top players far outstrips the entire value of many of the lower division clubs. Indeed, the value of some players boot deal alone is far beyond the value of some squads in the game at the moment.

Clubs that had previously taken insurance to cover the actions of their players on the pitch against opponents have discovered either premiums have rocketed to unviable proportions or commercial insurers won’t touch it with a bargepole. The risks and sums of money involved are just too high should insurers have to pay out. Players are left exposed to carry the can for their own actions and this is where the soccer ends and a dangerous game of Russian roulette begins.

3. HEADS OR TAILS?
In 1988 Danny Thomas received £30,000 for a tackle that ended his career. Ian Durrent (Rangers) settled out of court for a total of £300,000 for a tackle that put him sidelined for three years. Both sums are a mere pittance compared to the pay packets of today’s international stars, but two early examples of how legal action can be successful.

In 1997 Kevin Grey ruined Gordon Watson’s career by breaking his leg in a local derby match between Bradford City and Huddersfield Town. Legendary BBC soccer pundit Jimmy Hill described the foul as “the worst tackle I have ever seen”. The case went to court and Watson was awarded a record-breaking £1 million in compensation. In this case, a court decided that a professional player would have known there was a significant risk that such a challenge would result in physical injury. The club was held to be vicariously liable for their employee’s negligence.

On the other hand, Paul Elliot (Chelsea) spent a small fortune pursuing a similar claim against Dean Saunders (Liverpool) and received nothing.

These two differing cases neatly present the problems being pondered by clubs and players. Deciding whether a player has the right to legal action is a difficult one and it goes without saying that the specific facts in each case are unique. Whether or not legal action is the best step is also a difficult choice. Watson may agree it is. Elliot, most probably not. Crucially, what if a player at an insolvent club is to blame?

4. OWN GOAL
Litigation can be a minefield when players take other players to court. An extreme difficulty for judges is putting themselves in the boots of the accused player. Football is all about split-second decisions by players and officials. How is a player to know when to pull out of a tackle that could result in injury when he or she is caught up in the frantic activity of a match? What would a judge use as evidence?

Some incidents will be more clear-cut than others. High profile games will undoubtedly have a number of camera angles of the incident not available at lesser matches. Some career-ending incidents might not even be a foul. After all, 50/50 challenges can also have ugly outcomes.
Previous disciplinary records of the accused, referees reports, eyewitnesses and managers statements have all been used by the court to reach a decision in such soccer-related cases.

Taken that a big-name player takes legal action and succeeds in being compensated for his loss of earnings to the tune of a few million pounds (which is not unfeasible) – it would take a miracle for a player with an insolvent club to pay up if they were held to be vicariously liable where they have no insurance. The player himself could be left trying to settle huge damages.

It is essential for the well being of the sport and for spectator enjoyment that club managers (and presumably shareholder and directors) keep star players on the bench when playing against lower teams or in so-called lesser competitions to avoid the risk of writing off a key asset. In the event of a giant- killing act, this could be an own goal tactic, but increasingly it’s a risk that they are willing to take to avoid the even bigger problem of major injuries.

5. THE FUTURE?
There is no doubt that legal action against players and clubs looks set to increase in the future. Arguments over who will end up paying compensation will inevitably rumble on.

The judge in the Elliot v Saunders case suggested the development of ‘no fault’ insurance. Some footballing bodies have backed an insurance scheme linked to binding arbitration. This would take the form of all clubs contributing to a pot of money available for injured players who want compensation. This kind of scheme would probably have saved Paul Elliot the heartache of losing his long winded, expensive legal battle case and could stop current players suffering the same fate. However, others in the game feel this could be seen as endorsing such tackles.

It is fair to say that legal advice for football clubs has never been in higher demand. If the result of expert legal advice is proper compensation for players crocked by reckless tackles and stiff penalties for offenders then there are positives that can be gleaned. However, it is vital that all this has to be balanced if the law is to impose changes on the nature of the game enjoyed by millions.

Publisert 16.05.03