Jonathan Roy pleaded guilty to simple assault in a Quebec court and was granted an absolute discharge by the judge today. The charge stemmed from an incident during a Quebec Major Junior Hockey League playoff game in March 2009 when Quebec Remparts goaltender Jonathan Roy skated the length of the ice to fight an unwilling and defenseless Bobby Nadeau. Roy’s attack was brutal and barbaric. He punched Nadeau at least 14 times even while his victim lay supine on the ice.
Roy’s guilty plea saved the court the task of balancing The Criminal Code of Canada with the playing culture of hockey. Hockey is renowned for its violence. What made this case interesting was that whilst hockey players generally consent to some level of violence both within and outwith the rules and accept some risk of injury, Roy’s victim did not agree to fight nor attempt to defend himself. Incredibly, he was not injured.
This case is unique insofar as a hockey player pleaded guilty to a charge of criminal assault for a fight in which the victim was not harmed. A person commits an assault under s.265 of the Criminal Code when he applies force intentionally to another person, directly or indirectly, without the consent of the victim. This clearly was the case at bar. It is noteworthy that the sport of hockey is replete with instances where players have been injured in equally egregious circumstances but no charges are filed as it is rationalized as being all part of the game.
It’s impossible to speculate whether or not this case represents a turning point in Canadian courts’ treatment of hockey violence. One thing for sure though, given that Roy couldn’t hurt Nadeau with a dozen-plus punches, it’s a good thing he’s hung up his skates and taken up a new career in singing.
I thought while I was waiting for the quotes to come through for a new computer, I would hang out in the animation studio at the University.
Below is the first of the forthcoming animated sports law shorts. The video is a 3min animation discussing the problems of defining what is a sport. It was first shown as part of the 2009/10 Sports Law LLB (Hons) Degree Programme at Staffordshire University. The video was intended to summarise the latest debates and controversies surrounding academic and government attempts at defining sport in order to stimulate further debate on the topic. Feel free to add to the debate with your own views in the comments section (Here’s what other academics have had to say about it: http://sports-law.blogspot.com/2009/09/defining-sport-illustration.html)
Next video to be released will be an introductory guide to Sports Negligence…..
First a quick apology for the lack of posting recently, I’ve broken my laptop (again) and am looking at a desktop PC to replace it. Hopefully this should only be a week or so before business as usual….
Thanks to Staffordshire University, we now have a brand new discussion board for you to play with (https://www.staffs.ac.uk/forums/sportslaw/index.php). The forums are available for anyone to read, but if you want to post you will need to register for an account (dead simple, free, etc etc) and then you can post in whichever forums you wish to chat about. Have fun and play nicely!
Then in June Michael Lipman, Alex Crockett and Andrew Higgins quit Bath following claims that they refused to take drugs tests. It was alleged that Lipman, Crockett and Higgins had taken recreational drugs whilst at an end of season party. As a result their then club Bath requested they take drugs test. The 3 players were said to have dodged these requests. However all 3 deny that they were avoiding tests and in doing so they walked out on the club, claiming “scurrilous and unsubstantiated allegations” had forced their exit.
In July Justin Harrison admitted taking cocaine and was suspended from playing or coaching for 8 months for “actions prejudicial to the interests of the game”. Harrison admitted to taking the class A drug in the toilets of a West London pub and he also confessed to shouting “Class A, it’s OK, everyone’s doing it” on a coach carrying members of the Bath academy.
Now we are in the second week of August and following the goings on in June Lipman, Crockett and Higgins have been suspended by the RFU for 9 months after being found guilty of misconduct for failing to comply with their club’s request for a drugs test. What is interesting is that all allegations that the players had taken the drugs were dropped at the start of the hearing, which then allowed the hearing to focus on whether the club’s requests were reasonable or whether the 3 players actions in quitting the club after being asked to take the tests were reasonable.
The panel chaired by Judge Jeff Blackett fully supported the club’s actions and stated, “If the players had nothing to fear from taking a drugs test then they would have taken them.” They then went on to say, “The reality of the case was that at the time when asked to take a drugs test, the players believed there was a risk of positive results.
“This was either because they knew they had ingested drugs or they had drunk so much alcohol that they could not remember whether or not they had ingested drugs. Each of the players therefore decided to play for time, keep out of contact and then hide behind legal defence.”
Richard Mallett, solicitor acting on behalf of Lipman, Crockett and Higgins, said: “All three players are absolutely devastated by today’s result and that they have now been suspended from playing the game they love.” However, there is no sign of an appeal at the moment. This is possibly because everything that was stated in the panel’s summing up is true and their actions have hit home, after all nothing screams guilty more than refusing or obviously avoiding a drugs test on several occasions. The 3 players will now have a lot to do in repairing their damaged reputations.
Whilst some may feel disheartened that Rugby Union seems to be following in the footsteps of cycling, athletics, swimming etc and gaining a reputation for doping, others may see the shining light at the end of the tunnel. 2009 may be viewed as a breakthrough in tackling drugs in Rugby. Especially with premiership Rugby growing in popularity recreational drugs can no longer be ignored.
“The RFU disciplinary panel takes no pleasure in imposing its sanction as the players involved are decent young men,” the judgment added. “There is also a need for a strong deterrent in this sanction.”
The RFU supports Bath’s tough stance on what seems to be a zero tolerance for drugs, whether they be performance enhancing or purely recreational. In addressing the issues raised players will be subject to a new education programme next season whilst Bath’s head coach wants to push through a new code of conduct for all to abide by, which includes a ban on recreational drug use. Other clubs and sports should perhaps take a leaf out of Bath’s book by taking the initiative and going above and beyond that which is covered by WADA regulations to preserve the quality and reputation of the sport whilst protecting the health and welfare of its players and all those young people who look to professional sports players as role models.
The Atrium Club Ltd v. The Commissioners for Her Majesty’s Revenue & Customs (HMRC) [2009] UKVAT V20933 (London Tribunal Centre), 21 January
This an appeal against a decision by HMRC that Atrium made supplies of taxable sporting services. The case is complicated however because it concerns multiple companies – a ‘parent’ health & fitness club (Atrium) set-up in 1991 and a number of non-profit making subsidiary organisations (Atrium Health Ltd -1996, AAB Sports Ltd -2000, FAB Ltd -2003) each replacing its predecessor in order to provide exempt sporting services. By Atrium effectively leasing the premises to the new company to operate, Atrium saved VAT on its membership fees as these fees were reclassified as exempt supplies rather than standard-rated (and therefore taxable) supplies.
This was possible because under Part A of Article 13 of the Sixth Directive, certain activities closely linked to sport or physical recreation could be exempt from VAT. In 1996, consultants (AIC) employed by Atrium suggested that the fitness club could be restructured to take advantage of this rule and make the club competitive with local authority fitness clubs, and this was what happened with the licensing of Atrium Health Ltd to handle all the operational functions of the health club.
When in 2000 the rules became stricter, so a new company (AAB) was set up by another set of consultants (WJB Chiltern) in order to meet the more demanding new criteria. In 2002, this new scheme attracted the attention of HMRC and after an investigation, Customs concluded that not only were the membership fees of AAB taxable, but that Atrium should also be held liable for abusive practices designed to evade tax.
The Tribunal held at [70] however that while the WJB Chiltern scheme was ingenious, there was no direct nexus between Atrium and the customers. All the staff and club activities belonged to AAB rather than Atrium and it was AAB that dealt directly with the customers and paid staff PAYE contributions to HMRC. Given this conclusion, it was not possible to argue that Atrium actually supplied the sporting services [84].
HMRC’s alternative argument was therefore considered, namely that this arrangement was an ‘abusive practice’ designed to obtain a tax advantage [73]. The problem with this approach is that the scheme never worked and so no tax advantage ever occurred. When HMRC liquidated AAB for non payment of tax, all its assets were transferred to a newly created company (FAB Ltd) and HMRC could not then pursue Atrium for the debt [86], as such Atrium’s appeal against the HMRC decision was allowed.
Lambden v. Henley Rugby Football Club & Henley Rugby Football Club Ltd [2009] UKEAT/0505/08/DA
The case concerns the sacking of Jon Lambden, the 54 yr-old Head Coach and Director of Rugby at Henley Hawks Rugby Club on 18th February 2008. The case itself is an appeal from the decision of the 2008 Employment Tribunal in Reading that dismissed Lambden’s claim for unfair dismissal.
At issue in the case, is the nature of the claimant’s employment relationship with the club. The claimant contends that he was employed and therefore because the club summarily dismissed him without going through the full employment procedure, he is entitled to compensation. The Club on the other hand maintains that the claimant was actually self-employed and therefore it was entitled to terminate his services as it did.
Although there was a question mark over whether the Rugby club itself or the limited company set-up to manage the club that engaged in a contract with the claimant, the Appeal Tribunal agreed with the earlier Tribunal that the Rugby Club had no contractual relationship with the claimant and that any action would be against the limited company [36].
So why was the claimant’s employment relationship so controversial?
The problem was that Henley Rugby Club had merged two previous roles (one self-employed, the other employed under PAYE) and offered the claimant the choice of which tax status he wanted to be [21]. The claimant chose self-employed and set up his own limited company (JKNA Training Ltd) [23]. In doing so, the Tribunals found that the claimant had a clear idea as to the difference in status between the two methods of taxation [26]. This decision was not so clear-cut however when the full facts of the contractual relationship were examined
The claimant’s hours of work were all training evenings and match days
The work for the club amounted to just under one half of all JKNA invoices
The claimant had autonomy over playing and sporting matters (the tribunal held that this was not an indication of self-employment but rather specialist expertise superior to the club [32]).
The claimant was under the control of the Chairman of the Club Management Committee
A notice period of three months on either side was agreed
Salary was fixed at £27,500pa regardless of how many hours were actually worked, with provision for a bonus and importantly, 4 weeks holiday pay
Also included was a fully insured, leased car from the Club’s fleet and a Club credit card (although the Tribunal held that provision of a car and credit card were usually indicative of employment rather than self-employment status, it gave little weight to them, preferring the substance of the arrangements instead [27]).
The claimant was not expected to provide a replacement or substitute if he was unable to provide his services
Although both Tribunals held that there were aspects that pointed more to employment than self-employment, no single point was decisive and in the absence of an unequivocal finding more weight had to be given to the parties self-description (ie self-employment) [57].
Ultimately though, the decisive point in the case was the fact that the Employment Appeal Tribunal could only overrule the earlier Tribunal decision if it felt that it was in some way perverse or misdirected in law [45]. On these facts, it was impossible to say that they had and the claimant’s action failed.
The four claimants (Brendan Hannon, Martin Ryan, Declan Cusack & John Meaney) are all trustees of Thomond FC and sued the defendants over an agreement for sale of some land for a student apartment development. As part of the sale, the purchaser also agreed four special conditions (8-11) :
The provision of “two suitable rugby playing pitches, levelled, top soiled and ready for seeding” on the remaining lands
The relocation of the existing floodlights and electricity sub-station to one of these new pitches
The club would have a right of way over the roadway and footpath for use of the pitches and clubhouse
(Uncontested at trial) that the club could connect into the services installed by the purchaser.
While an earlier Circuit Court case (concerning clauses 8 & 9) was settled for an additional sum, effectively buying out the defendants obligations under the two clauses, nothing was raised about clause 10 until a year later when the claimant’s solicitors sent a letter reminding the defendants about their obligation to construct and light a right of way to the pitches.
The dispute in this case therefore relates to the meaning of the words in clause 10 and in particular when the obligation to build this roadway and footpath became due. The problem is that while the location of the right of way was agreed by both sides, no formal clubhouse actually existed (simply a temporary portakabin). The defendants therefore argued that they did not need to build a new right of way to this land as other pre-conditions had not been fulfilled. By contrast, the claimants argued that their actual use of the land was irrelevant but that any plans they did have for the land was compromised without the right of way, but even if it were not, clause 10 is a stand-alone clause.
Ultimately the court decided that the phrase ‘for use of the’ related to the purpose of the land, rather than any condition precedent and that as a result the defendants were in breach of contract. The court however reserved any decision on awarding damages or specific performance until after further evidence had been heard about the future plans for the land.
Opinion of Lady Clark of Calton in the cause ofPearce v. Ferguson & Another [2009] CSOH 39
This case is an ex tempore oral opinion given by Lady Clark of Calton in the Scottish Court of Session (Outer House) in order to advise the parties. The issue relates to a negligence action for personal injuries during a test session ahead of a motor race at Knockhill Racing Circuit.
Although the defendant tried to argue that the claimant was a voluntary participant and motor racing carried an inherent risk [4], this was rejected by the court. In particular, at [5] it was noted that ‘it is not a matter within judicial knowledge as to what risks or dangers might be common or expected or exist by participating in test sessions at Knockhill Racing Circuit. I certainly cannot conclude that it is within judicial knowledge that the pursuer had voluntarily agreed to the risks of an accident of the type averred or that such accidents were part of the common risks of the sport at that particular racing circuit. I am of the opinion that evidence would be required about this.” (I’m guessing then that Lady Clark will not be watching the Hungarian Grand Prix this weekend!)
The opinion concluded at [7] with the rejection of the defence’s plea for a summary dismissal, and the note that it will only be possible to establish whether the defendant was in breach of his duty once the full facts have been established. We now wait for the full trial….
Mulvaney & Others v. Sporting Exchange Ltd (Trading as Betfair) & others [2009] IEHC 133
The two linked cases both concern bookmakers (Seamus Mulvaney and Ellen Martin) who are claiming damages for libellous comments posted by third parties on a forum hosted by Betfair Ltd. Although a number of issues arise in each of the cases, the main focus in this preliminary judgment was on the applicability of European Directive 2000/31/EC (the E-Commerce Directive) which had been transposed into Irish law by the European Communities (Directive 2000/1/EC) Regulations, 2003 (SI 69 of 2003) ahead of a full defamation trial.
This issue is important because while the E-Commerce Directive was designed to remove obstacles to cross-border online services, Article 14 of the Directive can also exempt internet intermediaries from liability for things they host, but did not create. The problem for Betfair is that Article 1(5)(d) of the Directive does not apply to gambling activities. If the court therefore held that the chatroom constituted gambling or betting, then Betfair could not rely on the Directive as a defence.
Ultimately, at [4.15] the court decided that because ‘no significant nexus’ operated between the chatroom forum and the betting sections of the website, no gambling did take place in that area and the Directive did apply.
Given that Betfair could rely on the Directive, the next questions to be answered were whether Betfair was an “intermediary service provider” and if so whether provision of a chatroom comes within the Directive? At [5.14], the Court agreed that it did and held that the use of a chatroom forum by third parties did amount to hosting an ‘information society service’ for the purposes of the Directive. Betfair can therefore rely on the E-Commerce Directive as a defence at the full defamation trial, although whether it will succeed or not will depend on the action that Betfair ultimately took when it became aware of the comments.
Source: full case report - http://www.bailii.org/ie/cases/IEHC/2009/H2.html
O’Brien v. Derwin & Others [2009] IEHC
This case concerns a traffic collision on the night of the 21st October 1998 on the N6 road between Athlone and Moate. The claimant’s car collided with a number of horses loose on the road before subsequently crashing into a concrete fence post. The claimant suffered brain damage in the collision, while one horse was killed and another injured.
The issue before the court was whether, on the balance of probabilities, the defendants owned and/or controlled the horses that were loose, and were negligent in allowing them to escape onto the highway causing the accident [3].
As no one had claimed either horse, it was left to the court to decide who the probable owners were. Witnesses described both animals as fine big horses and valued at between €3-10,000 [21]. Because the injured horse was also registered on the Show jumping Association of Ireland records, from here it could be traced to the defendant. Having reached this conclusion, it was then reasonable for the court to conclude that both horses were under the defendant’s control on the night of the accident [23].
Using photographs taken by the claimant’s son the day after the accident [14] and a site visit by the court [15], Mr Justice Charleton concluded that the condition of the fencing (or lack of) was inadequate and as such it was likely that a number of horses did escape from the field onto the highway that evening causing the crash. What then most likely happened is that the remaining horses were rounded up by the defendants that night and hurriedly transferred to another property [26]. The defendants were therefore held liable for the full costs of the accident.
The claimant was awarded €337,394.02 (€160,000 general damages, €177,394.02 special damages)
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