Exercising a public function: Spelman v. Express Newspapers [2012] EWHC 355 (QB)

Redacted (public version) of the transcript: http://www.bailii.org/ew/cases/EWHC/QB/2012/355.html

Guardian newspaper report: http://www.guardian.co.uk/sport/2012/apr/16/rfu-environment-secretary-drug-taking

A lot has been recently written about Jonathan Spelman, a 17year old boy and son of a Cabinet Minister (Caroline Spelman is Member of Parliament and Secretary of State for the Environment, Food and Rural Affairs) and on the 16^th April he was formally suspended from Rugby by the RFU for 21months for an anti-doping violation: http://www.rfu.com/News/2012/April/NewsArticles/160412_Spelman_judgment.aspx .

While the details of this anti-doping violation are now public knowledge, as is his unsuccessful fight to seek a privacy injunction barring reporting of this, what is perhaps more interesting is the Court’s view about sport.

 

The Background to the case

Jonathan Spelman played rugby for England U16 and for Harlequins RFC however he suffered a serious cruciate ligament injury in September 2011 which prevented him from playing. According to newspaper reports, he then ordered a series of steroids over the internet in an attempt to speed his recovery. The RFU name these substances as: testosterone, drostanolone (both anabolic steroids), growth hormone (GHRP6), human chorionic gonadotropin (HCG), clomid (clomiphene) and nolvadex (tamoxifen).

The Privacy injunction was an attempt to prevent the Daily Star Sunday (a tabloid newspaper) from revealing these allegations, an effort that subsequently failed. The resulting publicity in the media ultimately led to his voluntary appearance before the RFU’s independent disciplinary tribunal last month. Earlier this week, the tribunal reduced his anti-doping violation by three months to take into account his youth, immaturity and admission of guilt.

 

The Privacy Injunction attempt

Although the Daily Star Sunday did not yet have a fully written article, they were making enquiries of various parties to try to corroborate their information about Jonathan. After they approached these sources, they were contacted by the Claimant’s solicitors who instructed them to effectively cease and desist what they felt was an invasion of privacy and a political assault against Mrs Spelman.

By contrast, Express Newspapers argue that by giving full and prior notification of a potential story, they acted properly and responsibly, a principle that Max Mosley has previously campaigned on: http://www.guardian.co.uk/media/2011/jun/02/max-mosley-media-warn-subjects-expose . They also argued that Mrs Spelman was only an incidental aspect to the story [25] and that the key fact is that Jonathan is an elite sportsman who aspires to play at national and international level [66].

The initial hearing was on Saturday 11^th February 2012, see here for a redacted judgment:http://www.bailii.org/ew/cases/EWHC/QB/2012/239.html and http://www.bailii.org/ew/cases/EWHC/QB/2012/392.html

As with many privacy cases, the crux of the case turned on the interpretation of the Human Rights Act 1998 and the balancing exercise that needed to be undertaken between the diametrically opposite rights enshrined by Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression). At [30], the Court confirmed that neither of the Articles took precedence over the other, instead, the importance of each right, the justifications for any interference, and the proportionality of any action should be carefully reviewed. The Court also re-stated the importance of maintaining open justice and the public accountability of the Courts [19].

See: http://www.headoflegal.com/2012/02/24/spelman-injunction-lifted/ for an interesting analysis of this balancing exercise.

As an aside, at [24], there is also an interesting discussion of the mechanics of how Sunday papers work and the exclusivity they prize over the daily titles that could effectively scoop them to reporting ‘their’ story if the injunction was discharged during the week .

 

Unfettered Watchdogs

While the paper expressed the view that it would be cheaper to not contest the injunction, they felt that this would place serious constraints on their freedom of expression and their function as a ‘unfettered Watchdog in a democratic society’. Perhaps surprisingly, the Court broadly agreed and cited what it saw as two key paragraphs specifically applying and underpinning this principle in sport.

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

Resolution 1165 (1998) of the Parliamentary assembly of the Council of Europe on the Right to Privacy

And from the recent Grand Chamber case of Axel Springer AG v. Germany [2012] ECHR 227 (7 February 2012) [90]:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes….. but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no.44102/04, § 34, 8 June 2010).

The Court held that given this, and the fact that at least one of the facts was true (and thereby could act as a complete defence to any potential defamation action [60]), it would be in the public interest for the newspaper to publish. The Court did however recognise that such an article could be intrusive or offensive depending on how it was written [102] and reserved the right to award damages (including aggravated damages) for the disclosure of private information if the publisher could not justify its use [120].

 

Child Athletes

The rest of the judgment is comparatively unreported; however I would argue that it is actually the most interesting and far-reaching part! Essentially, the Court moved from the basic proposition that children enjoy no general rights to privacy simply because of their age [53], to suggesting that the fact that Jonathan was nearly 18 was irrelevant as the principles of the case and the public nature of his role would equally have applied by virtue of his status as an international U16 player [72].

While I would not recommend using Mr Justice Tugendhat’s comments at [68] to meet the Government’s legacy sport targets for youth sports participation:

The material benefits to those few children who succeed at the highest level can be fabulous. But these benefits may come at a high price. It is a matter of common knowledge that the effort to achieve the highest honours in sport can damage a person’s health and family life, and lead to an early death, or even to a life of misery when careers end early and in disappointment. But the price in terms of health and happiness may be paid even by the less successful performers (being the overwhelming majority, of course) without their ever obtaining the material or other significant benefits.

It is his subsequent comments that are potentially the most significant. At [69], Tugendhat J suggests that:

69….those engaged in sport at the national and international level are subject to many requirements which are not imposed on other members of the public. Matters relating to their health have to be disclosed and monitored, and they may have little if any control over the extent to which such information is disseminated. It is a condition of participating in high level sport that the participant gives up control over many aspects of private life. There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.

He then proceeds to extend this principle even further beyond professional athletes to journeyman athletes who merely ‘aim for’ rather than necessarily achieve the highest levels of sport [70].  Strictly speaking this area of the judgment is obiter, however it does make me wonder how many current child athletes (and their parents) understand the responsibilities that this extension of the principle entails. Not only are national and international child athletes role models and can legitimately be subjected to public scrutiny, but so now are lower level younger athletes. How far does this diminution of reasonable expectation of privacy extend? County level? What about pupils competing in the National School Games? It will be interesting to see how this area develops.

One last paragraph that sports governing bodies may wish to address is the potential ethical and welfare concerns raised by the Court in [107] that:

…..the demands made on children for the benefit of sport have increased very greatly over that period. Whereas in the past there was relatively little money to be made out of sport by anyone, sport has in recent years generated huge revenues, mostly from broadcasting and other intellectual property rights. So there is a risk that those responsible for organising national and international sporting activities may have interests that conflict with the welfare of the children who participate, or aspire to participate, in these activities.

Is this Tugendhat J’s response to the furore over Tom Daley’s media commitments, or is he suggesting that greater work should be undertaken to ensure that young athletes in professional and elite sport are not just protected from abusive relationships, but from the pressures and responsibilities of playing sport itself?

Ironically, this judgment has only increased these pressures.

Patience is a virtue (except for the Police!): ZH v. Commissioner of Police for the Metropolis [2012] EWHC 604 (Admin)

Case Transcript: http://www.judiciary.gov.uk/media/judgments/2012/zh-v-police-judgment

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23^rd September 2008. The claimant was a 16yr old pupil with Autism, epilepsy and various learning disabilities who could not communicate by speech and had a severe aversion to being touched.

On the day in question, ZH was attending the swimming baths for a ‘familiarisation’ visit with his carer (Mr Sateesh Badugu), two other school staff and a number of pupils from the school. Although it was not intended that he would swim or be close to the water, ZH broke away from the school group and stood fixated by the edge of the pool. Unable to persuade ZH to return with the group, the group returned to the school to get additional assistance, leaving Mr Badugu in charge of the claimant. The school now accepts that good practice would have been to have had closed sessions without the public present [146], but no criticism was made of the initial visit, nor of Mr Badugu’s actions in dealing with ZH.

The situation became exacerbated when the Pool manager (Christian Harland), having been notified of the situation by the duty lifeguard (Yvette Burton), became frustrated by what he saw as the “ineffectiveness of the carer” [9] trying to entice ZH away from the pool with crisps. In a panic and in an attempt to break the deadlock, Mr Harland rang the police stating:

“We have a disabled male trying to get into the pool….the carer is trying to stop him and he is getting aggressive…he is quite a big lad” [10]

The initial police response to this incident was in the form of two officers in full uniform (PC Hayley Mckelvie & PC Emma Colley). Following the misleading 999 call, both officers perceived an immediate threat to life, despite ZH having been standing calmly by the shallow end of the pool for at least 40mins with several lifeguards nearby [70].

PC McKelvie went to speak to ZH, without speaking to Mr Badugu first, and touched ZH gently on his back. The Court held that this was the catalyst for ZH to jump in the shallow end of the pool [79]. The police officers justified their actions on the basis that:

“no-one was taking control and the police had to do so, and be seen to be doing so” [15, 76 & 77]

While ZH could not swim, the presence of the lifeguards and the fact that they formed a cordon to prevent him from getting to the deep end meant he was in no imminent danger. During this time, more carers and school staff arrived, however despite ZH being in the water for between 5-10mins, the police did not consult the carers for advice, or for help in formulating a plan, and none was offered to the police [21].

Three further police officers (PC Susan Tither, PC Varinder Sooch & PC Stuart Hunter) arrived at the pool and they then proceeded to forcibly remove ZH from the water. As he was lifted out of the water, he was immediately placed forcibly on his back and all five officers applied force to his body to restrain him [25]. Despite the carers repeatedly asking the police not to restrain him in this way as he was autistic and epileptic [26], two police officers shouted loud clear commands to ZH, while leg restraints and two pairs of handcuffs were applied, during which process, ZH lost control of his bowels.

ZH was then carried from the building and placed alone in a cage in the rear of the police van, still in handcuffs and leg restraints and soaking wet. His carer was not allowed to go into the cage with him, but was able to calm him enough to persuade the police to remove the restraints.

The claimant successfully brought three main actions against the police: trespass to the person (assault, battery & false imprisonment), and claims under the Disability Discrimination Act 1995 and the Human Rights Act 1998.

 

Assault, Battery & False Imprisonment

Although the claimant alleged the unlawful application of force in touching or restraining, the Police argued that their actions were justified under the Mental Capacity Act 2005. While the defendant did not have to have the exact provisions of the Act in mind while they were applying the force they did have to demonstrate that:

• The claimant lacked capacity  (YES)
• Any act was in his best interests (NO)
• There was an imminent danger of severe injury (NO)
• This belief was genuine (YES)
• It was a proportionate response to the likelihood and severity of any harm (NO)
• The response was the least restrictive way of dealing with the incident (NO)
• The views of the carers were be considered (NO)

The Court held that as there was no emergency at any stage of the incident, the police were not acting in ZH’s best interests. The failure to consult with the carers before approaching ZH, removing him from the pool or restraining him on poolside was also unreasonable [125], unnecessary, and disproportionate [127]. ZH could also have been placed in a warm room within the building rather than the police van. While the Police tried to argue their actions were necessary, this was rejected by the Court as it would circumvent the provisions of the Mental Capacity Act 2005 [44].

 

Disability Discrimination Act 1995, s.21b

The claim under the Act was essentially that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions, or in failing to make any adaptations where necessary. In particular the Court held that 8 adaptations could have been made:

• Identify with carers the best way of communicating
• Take reasonable steps to address the situation
• Allow the claimant opportunities to communicate with his carers
• Allow the claimant an opportunity to move at his own pace
• Application of force was a last resort and should be at the minimum level necessary
• Responding to advice from carers as the situation developed
• Adopt alternative strategies to afford protection for C’s safety
• Prioritising adoption of calm, controlled and patient approach with the claimant

This duty on the Police to make reasonable adjustments and to inform themselves of the situation was a continuing and non-delegable duty throughout the incident. Indeed, even if the school or its carers had been in breach of a duty to inform the police of ZH’s condition [121], this did not excuse the police from liability under the Act [137].

 

Human Rights Act 1998 claim

The claimant was successful in claiming under three headings:

• Art 3 (inhuman / degrading treatment) – taking into account the whole period of restraint
• Art 5 (right to liberty) – while the use of restraint can be justified, on this occasion, “its use for a significant period of time on an autistic epileptic young man…was in the circumstances hasty, ill-informed and damaging” [145]
• Art 8 (right to respect for private life) – the police action was not justified as proportionate in the circumstances.

  

Implications

The Court was at pains to note that the Police did not act in any ill-intentioned way towards the claimant, indeed one might argue that the police were placed in a difficult and volatile situation by a misleading call. It is also true that while the claimant was not in imminent danger, he was in a dangerous situation that had the potential to escalate rapidly. Ultimately however, liability arose because the police jumped in at the deep end by failing to consult with the respective carers or use softer, more persuasive methods of control.

The case raises interesting points in relation to the tension between paternalism (in ZH’s best interests even though it might be distressing to be restrained) and libertarianism (ZH should be allowed to do whatever he wants). As with anything, the context is all-important. If the police had been called when ZH had only just moved and become fixated by the water, or if it had been near the deep-end, or in a busier pool where there was more potential for accidental bumping / injury to the public, then the police response may have been more easily justified.

Ironically, the key failing of the police was not in immediately taking control of the situation, but rather in becoming fixated with an aggressive solution to a perceived problem, and demonstrating an inability to communicate with people around them. If officers had deferred to, consulted or sought advice from the carers (even if it was later disregarded as inappropriate), many of the problems could have been avoided. On the other hand, would the police have been criticised for delegating too much of their authorit? The incident also raises the tricky question of how they should evaluate the competency of any ‘expert advice’ they receive during an incident?

Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided

While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html

The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.

While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.

Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.

While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The  defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.

The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:

“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”

The Court also held that the instructor should have:

• Been aware that there had been previous injuries sustained historically from other climbers
• observed that the people P was climbing with had also jumped from the wall, prior to P’s injury

This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.

While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.

It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?

If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.

Restoring Respect: Why Mediation could have provided a better solution to the Suarez/Evra case

Report of the Independent Regulatory Commission: http://nav.thefa.com/sitecore/content/TheFA/Home/TheFA/Disciplinary/NewsAndFeatures/2011/luis-suarez-written-reasons

See also: http://www.guardian.co.uk/football/blog/2012/feb/12/liverpool-apologies-luis-suarez-manchester-united; http://www.guardian.co.uk/football/2012/jan/01/fa-report-luis-suarez-patrice-evra

Rightly (or wrongly), the Suarez/Evra case has dominated discussions in the media since November, while the FA may have felt that Liverpool FC’s decision not to appeal the Commission’s verdict meant that they could draw a line under the incident; following ‘handshake-gate’ last week, the controversy has re-ignited once again. This article will examine whether the use of mediation instead could have provided all parties with a much more effective and lasting solution.

 

RACIST LANGUAGE

The original incident was sparked by a foul during the 15^th October 2011 Premier League fixture between Manchester United FC and Liverpool FC at Anfield. The match was always likely to be fiercely contested, however on this occasion Luis Suarez (Liverpool striker) fouled Patrice Evra (Manchester United captain / left back) in the 58^th minute. On the 63^rd minute, as Evra was marking Suarez for a Liverpool corner, heated words were exchanged in Spanish between the two players over the earlier foul. Evra subsequently alleged that racist language was used by Suarez towards him.

Following an investigation, on 16^th November, the Football Association (FA) charged Suarez with Misconduct contrary to FA Rule E3:

• using abusive / insulting words and/or behaviour towards Mr Evra contrary to Rule E3(1) [A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour]
• and inclusion of a reference to Mr Evra’s ethnic origin and/or colour and/or race in breach of E3(2) [In the event of any breach of Rule E3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, face, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction…..]

Suarez denied all the charges and requested a personal hearing.

An independent Regulatory Commission met between 14-20^th December 2011 to hear the charges, and after lengthy deliberations, found the charges proved (although not in their entirety). The panel imposed a £40,000 fine, suspension for eight first team matches and warned Suarez as to his future conduct as well as ordering him to pay costs [8].

Last Saturday, having fully served his suspension, Luis Suarez was back in the team to play Manchester United at Old Trafford. In the customary Premier League pre-match handshake, Suarez deliberately bypassed Evra’s outstretched hand and in doing so exacerbated what was already an incendiary situation.

So what could have been done differently?

 

MEDIATION & RESTORATIVE JUSTICE

This article will suggest that had the FA used mediation, instead of, or indeed to supplement their traditional disciplinary mechanism, then the conflict could have been resolved.

The initial Suarez case effectively turned on which player’s account of events you believed. While both players agreed on how the incident started, there was considerable divergence on what exactly was said, when, in what context and by whom. Rightly or wrongly, when the affair then became publicly aired through the media, positions hardened, and given the prospective penalties if either accusation was proved (Suarez is a racist, or Evra is a liar), it is perhaps unsurprising that many people came out in support of their respective favourite (resulting in the now infamous Tshirts worn by the Liverpool players and the Klu Klux Klan mask printed in the Manchester United fanzine). The problem is that each action taken immediately after the match escalated the dispute, raising the stakes and firmly entrenching the battle-lines between each side. By the time of the hearing, the solution was always going to be win-lose.

In light of these tensions, the key question therefore becomes was the disciplinary commission hearing the right solution to this problem, or at worst, did it further inflame the situation? This article will suggest the latter. To understand why, it is worth pausing for a second to define mediation. Essentially mediation is one of the oldest forms of conflict resolution and uses neutral third parties to facilitate discussions with all parties in order to resolve the issues in dispute, in a non-binding process. While it is true that the disciplinary commission was comparatively informal, it could not be further removed from mediation.

By its very nature, the disciplinary commission was inherently adversarial and arbitrary. The commission decided any facts in dispute, whether the FA charges had been proved or disproved, and what sanctions, if any, should be awarded. The victim (Evra)’s role in the process was limited to giving evidence on behalf of the FA (witness), while the offender (Suarez) effectively spoke through his legal counsel who made excuses on his behalf (spectator). At no time was there the opportunity to examine and challenge the underlying motivation that led to Suarez’s comments. Instead, once the charge(s) had been proved, a penalty was imposed and the case was closed. Is it any wonder then that after the penalty was spent, tensions between the two players still persisted?

In reality, none of the stakeholders achieved a successful resolution to the conflict:

• Evra did not receive an apology, indeed he was accused of fabricating malicious lies [327], slighting Suarez’s regional identity (later rejected by the panel [363]) and was ultimately held by the Panel to have initiated the confrontation [240] and used an offensive phrase towards Suarez [87]
• Suarez was held to have spoken abusive and insulting words which had racial elements to them [392] and was branded as a racist in the media, although the FA [223], Commission [454] and Evra [232] all expressed a belief that Suarez was not a racist
• The incident flared up again the next time the teams played, causing damage to the FA Respect campaign.

 

Instead, a better approach would have involved traditional mediation or included an aspect of restorative justice (a Victim-Offender Reconciliation Program (VORP) inspired by the Canadian ‘Elmira case’).

This latter model is based on four key principles (see E Gillman’s paper for more details):

1) Understanding that the wrong was committed against a specific person (Patrice Evra) rather than necessarily society. While it is true that in saying what he did, Luis Suarez undermined the FA Respect and Kick it Out campaigns, any public protection argument should be balanced with the need to reconcile the two players and repair any damage committed

2) Challenging attitudes toward offender – in particular how to re-integrate the offender (Suarez) back into the community as a positive citizen

3) Challenging the retributive response – the focus of restorative justice is on providing a range of opportunities for dialogue, negotiation and problem solving in order to encourage accountability, rather than simply imposing punitive sanctions (£40,000 fine, eight game suspension)

4) Victim participation in process – those who have been harmed (Evra) by the offender should have a primary, active role in determining what needs to be addressed, being given the opportunity to be acknowledged and heard, having a role in how the resolution should happen and receiving support services for healing and closure.

While such a system is becoming increasingly common in the criminal justice system, disciplinary frameworks in sport are still comparatively traditional and punitive. Interestingly, under Article 1 of its mediation rules, the Court of Arbitration expressly excludes mediation from all disputes relating to disciplinary matters. This article is not suggesting that such an approach would necessarily be appropriate for all potential offences, for example prosecuting doping offences would be an obvious example where attempts at mediation might be inappropriate, however there were three distinct opportunities where mediation techniques could have provided a better solution to the Suarez case.

 

MEDIATION BEFORE ANY HEARING

The first opportunity was to have mediation occur before the commission hearing. Professional Footballers’ Association (PFA) Chief Executive (Gordon Taylor) did offer to mediate between the two players immediately after the incident, however his offer was rejected.

While I appreciate that it was important to have a full inquiry into the incident, mediation still has its place. One model that could have been used was the German penal model which integrates VOPR into criminal procedure and sanctioning. Such a system encourages voluntary mediation to take place before trial in order to attempt early reconciliation between the parties. Any apology, restitution or compensation that is agreed between the parties prior to the trial can then be used to mitigate any sanctions that would have been imposed subsequently. Such an approach would have had a number of advantages in this case, as the parties might have been less hostile at any commission hearing. If the prime motivation for Evra was to receive an apology and personal redress from Suarez, he would have been far more likely to receive this in a private mediation session rather than the public and considerably more formal commission hearing. It could have also negated much of the hostile media coverage of the incident; Suarez would have similar incentives for participating, as an early admission of his culpability may have defused many of the tensions thereby improving his position in relation to any penalties imposed by the FA. The speed that mediation can occur would also have enabled the incident to have been defused in a much quicker timeframe.

Of note, is that the Mediation process is still valuable even if the parties ultimately fail to agree any resolution as it enables the key issues to be identified for any later hearing and the parties to have at least heard each other’s point of view. Had the clubs (and players) not been of equal international status and resources, mediation would have also been useful for reducing any potential power imbalances between the parties.

 

MEDIATION DURING THE HEARING

Using mediation during the hearing may have broken down a lot of the animosity and helped the panel to reach findings of fact quicker. It would also have enabled the commission to explore underlying motives leading up to the incident, from all parties. As it was, the Commission was focused (hamstrung?) into making a decision on the Charge (and any penalty) and nothing else [222].

As with anything, mediation is not a complete panacea as it will very much depend on the victim (Evra)’s willingness to actively take part in proceedings and explain his reaction and pain in a neutral environment. As it was, Evra’s evidence before the Commission was challenged by Suarez’s legal team as malicious lies in order to exact vengeance for Suarez’s foul and subsequent failure to offer an unrestricted and unequivocal apology! [327]). Indeed, the Commission itself commented that Mr Suarez made what we considered to be such an unarguable assertion in his witness statement, ie that pinching was an attempt to defuse the situation when it plainly was not [249] and again at [267] once more, we were troubled by the fact that Mr Suarez advanced this case to us and relied on it to the extent that he did, when it was unsustainable. Such actions are inherent though in a legal dispute where the burden is on proving fault and casting doubt on the opponent, but could perhaps be avoided by a skilled mediator.

Although the action was initially framed as an investigation into the use of offensive racist language, by the end of the hearing, the focus somewhat shifted into the acceptability of words spoken in the heat of the moment in order to provoke Evra and cause him to be sent off, thereby gaining a competitive advantage in the game [414]. This is an important distinction, not in the context of the FA Charge (once it is accepted that the offensive word was repeated seven times, sanctions will ensue), but rather in educating future conduct (both Suarez’s and the wider footballing family).

All parties to the dispute ultimately accepted that cultural differences could represent a source of conflict if they are not respected, valued or understood. Indeed, there were language difficulties by both sides; Suarez spoke little English [235], while Evra’s initial allegation that the Spanish word Suarez had called him translated as n**~$%*, was later withdrawn and replaced with black [274]. What made the matter even more contentious though was that while the panel accepted that the Spanish word ‘negro’ can be employed with the intent to offend and to offend in racial terms [171], it is by no means always used offensively. Indeed, in Uruguay, the term can also be used as a friendly form of address [172], however in all situations, it depends heavily on the context in which it is used [201]. In this incident, in the context of animosity, confrontation and hostility, the Panel held that the language was designed to be abusive and insulting [205], although it is clear from the comments that Suarez posted to Facebook and Twitter the day after the incident that he did not share this perception and he was upset at accusations of racism [161]. Unless Suarez himself accepts genuine contrition for the incident (as opposed to cursory apologies issued by the Club on his behalf), feelings of unfairness may still fester.

It is also worth noting that conflicts may have multiple underlying causes and the incident was perhaps not as one-sided as it was portrayed in the media. While Suarez’s behaviour should rightly be condemned, the fact that Evra was seen to initiate the conflict and use an offensive phrase against Suarez (seemingly condoned by the authorities as the phrase did not contain racial slurs) could leave Suarez feeling somewhat hard done by. This absolutely does not defend what Suarez said subsequently, but certainly could form part of the underlying conflict structure, and was left unaddressed by the Panel and FA. Mediation on the other hand, would have allowed Suarez to express any feelings he might have about this and may have prevented Evra’s exuberant post-match celebrations immediately after the second match (condemned by all sides), which could have acted as a trigger event to a new conflict.

 

MEDIATION AFTER THE HEARING

The Commission announced their ruling (plus findings of fact) at 3pm on 20^th December. After hearing submissions from both parties (The FA and Suarez) on penalties, it then adjourned at 4:40pm to consider the appropriate sanction(s). It subsequently announced its decision on penalties at 6:20pm that evening [44].

Is quick justice lasting justice? Indeed it is worth considering what the objective of the Commission actually was and what effect it hoped to have on Suarez? At [454], they stated that “Mr Suarez said in evidence that he will not use the word “negro” on a football pitch in England in the future, and we believe that is his genuine and firm intention”  but does this solve the underlying conflict structure or fulfil Patrice Evra’s needs?

It is perhaps illuminative to look at the FA submissions on what they feel the appropriate penalty should have been: at [408] an increased sanction was required to punish Suarez and also to ensure that it is widely known that the FA deprecates and will not accept racist behaviour. In other words, a deterrent sanction is called for…. [410] aggravated because Suarez is an international footballer of exceptional ability playing for one of the best-known clubs in the world.

Does this mean that the penalty system should be subjective? If you are a rubbish player at a lower league club, and you say exactly the same words, you should be entitled to a lesser penalty? The FA (and ultimately the Commission) view is almost biblical – an eye for an eye, behaviour control through punitive sanctions to act as a deterrent for other wrongdoers.

However, it should be questioned whether alternative approaches would have been more appropriate:

“Much deviance is expressive, a clumsy attempt to say something. Let the crime then become a starting point for a real dialogue, and not for an equally clumsy answer in the form of a spoonful of pain.” (N Christie, Limits to Pain 1981)

If the ultimate aim of the process was to stop the downward spiral and underlying issues, then Suarez should have been re-integrated him back into the football community over a period of time following successful rehabilitation and re-education. It is right that he should be held to account by the community, but he should also be offered forgiveness if he has accepted responsibility for his actions and then expressed genuine remorse. Marking him out as an offender does little to ensure future compliance with rules, although it may be appropriate if public safety was an issue.

It is encouraging that the PFA is once again offering to mediate in the on-going row, but I fear that this may be too little too late. A better future solution would have been to have the hearing if the facts were in doubt, but to mediate before any final sanctioning decision. One model that may be of interest is the Australian approach that referred all AFL cases of racial misconduct to mediation as a key part of the process to educate offenders about the issue of racism.

In particular, T Humphrey gives the example of how in 1999, “Peter Everitt, after abusing Scott Chisholm mid-game, took a compromise settlement at mediation that involved a self-imposed four-week suspension, a $20,000 fine, a racial awareness training program, loss of match payments and a public apology to Chisholm, his family and the aboriginal community.” (Dust in the Balance, ISLR (2008))

If any English post-hearing mediation involved all the relevant stakeholders (the FA, Evra, Suarez and representatives from the wider football community) and guidance was given as to appropriate ranges of sanctions, there is scope for a much more appropriate and agreed solution. Suarez should be punished for what he said, at issue though is how to make him accept that what he did is wrong in order to reduce any risk of re-ofending. Anybody can simply view a punishment as a slap on the wrist and a temporary hurdle to be endured.

Ultimately, the question then becomes: should any or all of these mediation approaches be adopted, would FIFA and the media (as moral arbiters of the game) accept such an outcome?

 

Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

The case of Sara Hobbin v. Vertical Descents seems eerily related to Jon’s earlier post on Heli-skiing (http://sportslawnews.wordpress.com/2012/01/07/perspective-and-probability/). Essentially this case concerns a head injury to a novice participant in a 2007 Canyoning activity in the Lake District.

Miss Hobbins (the claimant) and her then partner (Geraint Grace) had aimed to climb Ben Nevis, but wanted another activity to do the day before their climb. After reading an advertising leaflet for Vertical Descents Ltd (the defendants), they settled on Canyoning – “a method of descending canyons, streams, ravines and other water-courses by means of sliding, jumping and scrambling.” [2]. Indeed, Vertical Descents Ltd were an experienced outdoor activity company and had been the first company in Scotland to offer the activity.

After attending a safety briefing and signing a disclaimer form, the participants were given protective clothing (wetsuit, buoyancy aid and helmet) and driven to the easiest of the canyoning routes used by Vertical (Allt Gleann A’chaolis, near Kinlochleven).

The key problem for Miss Hobbin can be traced back to her failure to maintain her footing and balance during the activity. Initially, the Court heard how she was concerned prior to embarking whether her choice of footwear would be suitable (she wanted to wear baseball shoes in order to keep her hiking boots dry prior to the proposed climb the following day). At Vertical’s headquarters though, an instructor confirmed that this would be acceptable as the soft baseball shoe sole would enable them to establish “maximum contact with the surfaces” [7]. Sadly during the activity, this grip did not seem to help her. She became bogged down in marshy ground on the ascent [12], and slipped and fell in the water during the descent [14].

Ultimately the injury occurred when Miss Hobbin declined to make a jump of about 15ft into the water and was making her way down to a lower level to meet up with the rest of the group. As she was descending, she subsequently lost her footing on the rocks and fell, striking the back of her head. After a short period of time, the claimant was then assisted down the hill by her partner and an instructor and taken to hospital for observation.

In the Scottish Outer House, Court of Session, both parties argued that the claim depended on identifying the exact rock that the claimant was standing on, the Court however took a much broader view and focused on two main points:

1)      Whether the claimant should have been allowed to do the activity given that the descent was inherently risky and the claimant had been struggling with the ascent [26]. The Court however saw no reason why the claimant was unable or unwilling to continue the descent and this claim was struck out.

2)      The general credibility and reliability of the evidence as to how the accident occurred [34]. While Miss Hobbins credibility was not in question, the Court felt that her tiredness and inexperience with the topography of the canyon was not as reliable as that of the instructor (Graham Reid), who was well qualified and experienced, had led approx 80-100 canyoning trips [12] and was very familiar with the terrain and layout. As such the claim was dismissed and no liability found.

RISK

What is particularly interesting about this case is the discussion on perception of risk. Encouragingly, the Court relied on the dicta from Scout Association v. Barnes [2010] EWCA 1476 [34] acknowledging that it was not the function of the law to deter normal leisure activities. The Court also noted a number of points emphasising Miss Hobbins’ informed consent about the nature of the activity, in particular that she had:

• Read Vertical Descent’s description of the activity (website / advertising literature)
• Read and signed a disclaimer form for the activity which specifically highlighted the risks and nature of the canyoning [8]
• Been given information by course instructors during a safety briefing and had been given the opportunity to ask questions
• Been required to wear safety clothing (including a helmet)
• Observed the site herself when she had reached the top of the ascent
• Self-evaluated her own competence to perform the activity

Although the Court seemed approving of the claimant’s expert witness (Mr Barton) when he said that “it was the duty of an adventure company to keep risks within a tolerable level”, it did note that it was difficult to determine what constitutes the right measure of tolerance [31]. And while it is obiter in this case, therein lies the key to outdoor and adventure liability – what level of risk is acceptable? Should we have different tolerances for guides and paid clients, to hardy adventurers wishing to challenge their own limits?

As Jon’s last post foreshadowed, what is however difficult to reconcile is the perception that outdoor adventure activity is comparatively harmless:

• At [4], the Court heard how Vertical’s website stated that “canyoning is a safe, fun and enjoyable activity for people of all ages and levels of fitness”
• Throughout her evidence, the claimant repeated that she thought that the activity would be safe [31]
• Mr Barton stated in cross examination that “persons on canyoning ‘taster days’ don’t want to be doing anything more risky than being on the High Street” [32] (although I suppose this depends on which High Street at what time of night!)

As Erin Langworthy’s recent Bungee Jump into the Zambezi River showed, the trouble with probabilities are that sometimes those rare accidents do happen. Is the solution therefore to ensure that consent to outdoor or adventurous activities becomes more akin to medical negligence where every material risk and percentage needs to be disclosed, or is it more akin to rugby – where consent is implied from mere participation in the activity?

The problem is that Leap of the integral of the random variable with respect to its probability measure just doesnt have the same catchy ring to it as ‘Leap of Faith’!

http://www.youtube.com/watch?v=VxkY0GGNVMM

Is Sepp Blatter the new poster boy for “sports law”?

Photograph licensed by Agencia Brasil under the Creative Commons Attribution 2.5 Brazil license.

In recent days it has been difficult to avoid the furore surrounding Sepp Blatter (President of FIFA)’s recent comments concerning what he sees as the new approach to treat racism in sport:

“I would deny it. There is no racism.  There is maybe one of the players towards another – he has a word or a gesture which is not the correct one. But the one who is affected by that, he should say that this is a game. We are in a game, and at the end of the game, we shake hands, and this can happen, because we have worked so hard against racism and discrimination.”  (http://www.guardian.co.uk/football/2011/nov/17/sepp-blatter-fifa-racism-rio-ferdinand?newsfeed=true)

In the current UK climate where two high-profile premiership footballers are currently being investigated by The Football Association over, as yet unproven, allegations made against them of making racist comments (which both players vehemently deny), Blatter’s recent interview is at best ill-informed, at worst it represents an attempt to trivialise and condone racist language.

Many players (current and former), pundits, administrators and politicians have rightly come out and strongly condemned Blatter’s comments, however until the commercial sponsors also seek to distance themselves from FIFA, I fear that the status quo will continue and this will not be the last controversial statement emanating from FIFA house. After all, President Blatter offended female players in 2004 with his suggestion to enhance the women’s game through players wearing:

‘tighter shorts and low cut shirts… to create a more female aesthetic.‘

and his 2008 assertion that:

‘there are gay footballers, but they don’t declare it because it will not be accepted in these macho organisations. Look at women’s football – homosexuality is more popular there‘

Indeed, he clearly warmed to this theme of homophobia, returning to it in 2010 with advice to gay rights campaigners to ‘refrain from any sexual activities’ to avoid breaking any laws and offending the World Cup hosts in Qatar!

What are the odds then on Blatter offending disabled footballers next in his attempts to discriminate against everyone equally?

 

Much ink, column space and tweets have been spilled dissecting his most recent comments, but everybody seems to be missing something, is Sepp Blatter not in fact the new poster boy for “sports law”?

So what do I mean by this? It has long been a perennial (and somewhat dry) academic debate as to whether sports law exists. Is sport special, where what happens on the pitch stays on the pitch, immune from the laws of the land (sports law)? Or should offences be punished wherever and whenever they occur irrespective of the fact they might occur on a sportsfield (sport and the law)? Or is there some sort of middle ground where we take into account the context of the game being played (applied sports law).

When the latest player gets carted off injured, there is inevitably a reluctance for the law to become involved for fears that it might lead to a sterilization of the sport and the vigour with which it is played. However is this not what Sepp is also clumsily advocating (only in the context of racism rather than personal injury), as such, is this not simply a manifestation of an extreme view of what could happen if we allow sport to completely self-regulate itself?

While his comments on racism are rightly condemned, we can see similar language already exists in relation to personal injury, for example, compare Blatter’s later comments on the FIFA website:

“My comments have been misunderstood. What I wanted to express is that, as football players, during a match, you have ‘battles’ with your opponents, and sometimes things are done which are wrong. But, normally, at the end of the match, you apologise to your opponent if you had a confrontation during the match, you shake hands, and when the game is over, it is over.” 

With the well-known Canadian criminal law ice-hockey case of Agar v Canning (1965) 54 WWR 302, 304:

“The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.”

Isn’t Blatter merely taking this Agar personal injury concept to the next level and attempting to apply it to every incident on the sports pitch (or on this occasion as an ill-thought out and unacceptable attempt to try to excuse or condone racist behaviour).

Speaking to BBC Radio 5 live, former player turned pundit, Garth Crooks was quoted as saying that:

“Football has to be very careful. It’s the one industry that somehow sees itself as above the law. It is not. Players, however glorified, are employees and have to abide by the law. Sepp is a man out of time and out of touch.”

However maybe it is actually the rest of us that have to be very careful. With every reaction against verdicts like:

• the Bosman ruling, or Karen Murphy’s recent European Court victory in her challenge against the Premier League and Sky Sports,
• the 2010 case of Sagen v. VANOC where Canadian courts upheld womens ski-jumpers argument that their ban from the Winter Olympics was discriminatory but ultimately held that there was nothing that could be done in the face of a lack of constitutional jurisdiction over the International Olympic Committee (IOC)
• government ‘meddling’ in the governance arrangements of national governing bodies
• and perhaps more importantly the impending FC Sion legal dispute

maybe we are actually inching ever closer to Blatter’s extreme view where it is unaccountable sporting authorities that control what happens on the pitch unregulated and effectively immune from any national or international legislation?

The reaction against Blatter’s comments from all walks of life gives me some hope that maybe we are not as far down this route as we might have initially appeared to be, the question now for the public and administrators to decide is how ‘special is sport’ and to what degree do we expect it to meet minimum standards of governance, transparency and equality? Or put simply how far do we trust sport to regulate itself?

Quia Custodet Ipsos Custodes?

Contemporary Issues in Sports Law and Practice 2011

Friday November 4, 2011

Over the weekend, I finally managed to collate my various thoughts and notes into some semblance of order.

Firstly, our thanks must go to De Montfort University (DMU) and the British Association for Sport and the Law (BASL) for hosting what was once again a very enjoyable afternoon of speakers exploring a variety of key sports law topics. The half-day conference heard from six speakers, the first plenary session focusing primarily on football and Europe, the second plenary session focusing more on the investigatory and disciplinary processes behind the scenes:

Nick Craig (Director of Legal Affairs, the Football League) gave a presentation on ‘Financial Fair Play and the Football League’.  While the UEFA Club Licensing Regulations have been in place from the 2004/05 season (the current Licensing Manual is now in its 2^nd edition), UEFA have also launched Financial Fair Play Regulations (FFPR) to be applied from the summer of 2011 with the view that all clubs in European competition break-even by 2018. The topic is hot news at the moment in both the mainstream press and more specialist legal coverage.

There were number of particularly interesting points about the contrast between the FFPR being applied in the Premier League as a condition of entry into European competitions, and the Football League (FL) model where the licensing regulations are intended more as a regulatory mechanism to control the clubs and force them to become more sustainable. Legally this agreement with the FL clubs represents a “soft” law approach where the clubs “agree  to actively work to introduce measures”, “increase transparency” and encourage clubs to operate”….  Time will tell how effective the league will be with this increased regulatory authority.

The big stick comes in Article 12(2) of the FFPR which states that:

2 The membership and the contractual relationship (if any) must have lasted – at the start of the licence season – for at least three consecutive years. Any alteration to the club’s legal form or company structure (including, for example, changing its headquarters, name or club colours, or transferring stakeholdings between different clubs) during this period in order to facilitate its qualification on sporting merit and/or its receipt of a licence to the detriment of the integrity of a competition is deemed as an interruption of membership or contractual relationship (if any) within the meaning of this provision.

This clause effectively holds that any club going insolvent restarts this three year process from scratch when it transfers its assets to a new owner, preventing clubs from ditching their debts and picking up where they left off free of all those troublesome creditors.

The devil as always is in the detail though, and while the cornerstone of the FFPR programme is in achieving break-even status, there are loopholes or ‘Acceptable Deviations’. In particular, the ability to lose €5m over the three years covered by the FFPR period (rising to a €45m loss if this is covered by equity contributions) neatly sidesteps the break-even provision, while Annex I A(d) of the FFPR lists an exception for:

d) Non-applicability of the three-year rule defined in Article 12(2) in case of change of legal form or company structure of the licence applicant on a caseby-case basis;   

or put another way, all clubs are equal, but some clubs are more equal than others, particularly if they might be a marquee name with large attendances and gate receipts!

 See also: http://www.financialfairplay.co.uk/ for more information on the FFPR rules

 

Chris Anderson (Associate, Brabners Chaffe Street Solicitors) gave a presentation on ‘Development Compensation for Young Football Players’.  One of the key drivers for this talk was the decision in ECJ – Case C-325/08 Olympique Lyonnais SASP v. Olivier Bernard & Newcastle United FC [41]:

“…In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players…”

 This will be a theme, the blog hopes to come back to in the near future, but essentially how much / little should be paid to clubs training (effectively as hot-houses) for new talent.

 Chris drew distinctions between:

• the FIFA system which compensated for both the training costs of a player (although at times there were concerns these payments were ‘damages-based’ rather than a reflection of the actual training costs), and the ‘solidarity mechanism’ (which effectively acted as a wealth redistribution system to share up to 5% of any transfer between clubs training the player between the ages of 12 and 23).
• The current domestic system which was based on agreeing costs (either by the agreement with clubs, or by reference to the Professional Football Compensation Committee (PFCC))
• The proposed NEW domestic ‘Elite Player Performance Plan (EPPP)’ provisionally scheduled to start in July 2012. This system was created and driven by the PL to specifically produce greater numbers of talented home-grown players through increased coaching time and a more transparent (and legally defensible) fixed training cost mechanism. The new system is split into three main phases:
  • The Foundation Phase (U9-U11):  every academy charges a flat fee
  • Youth Development Phase (U12-U16): standardised model of fixed payments based on academy status
  • Professional Development Phase (U17-U21): Clubs (or PFCC) agree appropriate fee

 See also alternative perspectives from: http://www.bbc.co.uk/blogs/paulfletcher/2011/02/football_league_fears_over_pla.html; http://www.fiveyearplanfanzine.co.uk/News/football-league-votes-to-back-elite-player-performance-plan.html; http://www.leedsunited.com/news/20111021/united-ceo-on-a-dark-day-for-football_2247585_2489344

 

Simon Boyes (Senior Lecturer, Nottingham Trent University) gave a presentation on ‘Sport and the European Union after the Lisbon Treaty’. The presentation traced the history of sport in the EU from its initial lack of academic interest, through the various reports, declarations, models and specificities to the present day and the Treaty of Lisbon. In doing so, Simon very much emphasised the evolutionary rather than revolutionary road to Lisbon. What was particularly interesting about the presentation was the thought that the EU was acting not so much as a regulator, but rather as a facilitator / supporter and using sport as a vehicle to engage in wider social missions (e.g. anti-doping, racism, corruption etc). These “softer” words such as “promotion…contribution…taking account of….developing” very much echoed Nick’s earlier talk on incorporating the UEFA licensing model into the Football League. Have all sporting regulators now embraced the softer stick? I thought that was just supposed to be horse-racing?

Any current discussion on Europe would not be complete without mentioning the recent Karen Murphy ruling (see here for a more in-depth analysis), and this was no exception! Interestingly, Simon suggested that fairness and openness were starting to creep into the ECJ rulings as values to be protected and upheld. This might be a trend to watch, particularly given the agenda for good governance and transparency.

 

 

Max Duthie (Partner, Bird & Bird Solicitors) gave a presentation on ‘The Sports Disciplinary Process’. The presentation started with, what seemed to be a recurring theme at the conference, the reluctance of the law to become involved in regulating sport (unless there was a clear departure from the rules / natural justice). Instead, Max pointed to the private, contractual nature of the disciplinary process, with governing bodies imposing their own regulatory codes of behaviour on the athletes under their jurisdiction.

Where I think that this presentation became more controversial was in the issue of jurisdiction, in particular who the sports were purporting to regulate. Max gave a number of examples:

• Direct contractual links (Paul Stretford)
• Implied contracts / contracts by conduct (Petr Korda)
• Voluntary submission to jurisdiction (Dean Richards)

However, where I think the issue becomes greyer is in Sports Codes like the recent Lawn Tennis Association (LTA) Competition Regulations, effective from 1 September 2011:

1.3 By organising, entering, playing tennis in and/ or participating in any way in an LTA Official Competition (including as officials, staff, coaches, representatives, agents, medical staff, relatives and associates of a Player, a Player’s entourage and spectators), a person and/or entity agrees to be bound by and to comply with these Regulations.

It is one thing to bind an athlete to a particular code of conduct, but quite another to hold that they should be responsible for the conduct of all spectators, especially when the player is court-side during a match. On a similar theme, the regulations merely state ‘relatives’ – does this mean all relatives? Or do we need to apply an Alcock-esque ‘close-ties of love and affection test’?

There was also a particularly interesting discussion on whether disciplinary sanctions should be fixed or variable and Max talked about the trade-off between consistency (fixed) and discretion / proportionality (variable), before warning of the cautionary tale of Delon Armitage and the implications that plea-bargaining might have on future tribunals.

See also: http://www.guardian.co.uk/sport/2011/nov/08/delon-armitage-london-irish-england?newsfeed=true  

 

 

Adam Brickell (Head of Legal Compliance, British Horseracing Authority) gave a presentation on ‘The Investigative Processes of the British Horseracing Authority (BHA)’. The highly technical and diagrammatic nature of the presentation makes it somewhat difficult to summarise in any way that could begin to do justice to it. That said, Adam did make a number of interesting observations about the role of the BHA, and in particular the 5 areas that it is currently addressing:

• Clear rules and regulations for participants
• An effective investigative and intelligence capability
• Robust disciplinary and licensing structures
• Comprehensive, on-going education programme
• Partnership approach with the Police, Betting industry and Gambling Commission

Two areas that may be of particular interest to watch in the future, are the concern that a number of betting firms are based offshore and, while they currently assist the BHA through Memorandums of Understanding (MoUs), these MoUs are not legally binding should the companies wish to subsequently withdraw their support. The second issue is linked to this and concerns the lack of regulation surrounding spread betting companies.

As an aside, Adam’s talk also continued Max’s theme from earlier about the regulation (or failure to regulate) members of the public not bound by the organisations rules. In particular, Adam gave the example of 6 individuals who placed suspicious bets on a particular horse, but fell outside the jurisdiction of the BHA when they decided not to cooperate with the investigation.

The final presentation belonged to Jonathan Merritt (Senior Lecturer, DMU) who gave us a sneak preview of his new PhD research into ‘Anti-Doping and Equestrianism’. We wish you every success in this venture…

Should pitch inspections be kicked into the long grass?: Sutton v. Syston Rugby Football Club Ltd [2011] EWCA Civ 1182

The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.

Read the BBC news report or the full case transcript.

 

FACTS OF THE CASE

On 2^nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.

About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub [3].

The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” [5]

They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:

1)    What was the appropriate standard to judge the quality of the inspection

2)    Whether this inspection would have revealed the stub (causation)

 

INSPECTION STANDARD

The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”

So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.

Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:

Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas [13].

In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!

This test therefore rejects the earlier first instance decision [11]:

“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”

 

WOULD AN INSPECTION HAVE REVEALED THE STUB?

Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service [2003] 1 AC 32, the Court of Appeal was unsure that the stub could have been discovered [17]. In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails [17].

 

WIDER IMPLICATIONS

An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at [13] Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

 Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” [18]

I suppose this begs the obvious question, when should courts interfere?

Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

Read the CAS verdict; IOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

• Athletes not guilty of a doping violation – rule does not apply
• Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
• Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
• Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
• Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
• Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
• Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

• Swiss Law (including fundamental principles)
• the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
• and the WADA Code, in particular, s.10.2 (sanctions for 1^st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

Bicycle races are coming your way so forget all your duties, oh yeah!: An analysis of Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB)

The dangers of relying on Queen lyrics as legal precedent is illustrated in the personal injury case of Simon Reynolds (a 49yr old property consultant), who suffered head injuries when he fell from his bicycle following a collision with another rider in a team-building race on 19^th June 2008. 

BACKGROUND

The race was part of a team-building event for the 35 staff working in the Canterbury office of Strutt & Parker (a national property consultancy and estate agency). Following a normal morning of work, 30 of the staff met in the boardroom to be divided into six teams of five for a mystery treasure-trail around East Kent, culminating in a trip to Fowlmead Country Park for the second stage of the day.

For those that have never been, Fowlmead Country Park is set amongst 200 acres regenerated from the shale spoil of the former Betteshanger Colliery site, and contained a 2 mile long tar macadam-surface road and cycling track. The idea was to run three types of events, an active and energetic event (the bicycle race), a harmonious and steady event and a thoughtful and considered event.

Each team would effectively sub-divide itself into two pairs and a single person to compete in these events, although it was stressed at the High Court that the purpose of the event was for fun and enjoyment rather than as a competitive and regimented exercise like many traditional team-building days. By the time, the groups reached Fowlmead, many were quite rowdy, having consumed Peroni beer along the route for refreshment.

The bicycle race was held in heats of two teams of two riders, the objective being to finish either 1^st, 2^nd or 3^rd, with the losing team of two being eliminated. The claimant was in the last of the three preliminary heats. Unfortunately, this proved to have quite a competitive undercurrent to it, with tension at the starting line as the claimant jostled for position in a narrow gap, despite the startline for the four riders being 8m wide! [18]. The claimant led for the start and was on target for a first place finish, when 20-25m down the finishing straight, he deliberately leaned to his right to cut up his closest rival, Alistair Cracknell, who was attempting to pass him down a gap on the inside. Cracknell lost control of his bike and in the resulting collision, the claimant was also thrown from his bike and suffered head injuries.

In echoes of recent overtaking manoeuvres (and collisions) in Formula One, the Court held that the claimant made a deliberate decision to behave in an aggressive manner, reckless as to the consequences [26]. This positioning by moving to the right despite there being no racing line or need to do so on a finishing straight is a key factor behind the accident and also immediately distinguishes the case from Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054 where the claimant was not aware of the position of the horses behind him going into a tight left hand bend. As such, the court held that the claimant should hold the greater proportion of the blame and found him two thirds liable.

During the course of the case, a number of questions were raised:

• Was the event part of the claimant’s employment? (which would bring him under the more favourable duties owed by the Health and Safety at Work Act 1974)
• Should all the riders have been provided with mandatory cycle helmets to wear?
• Had the defendants adequately assessed the risks of the event?

 

DO ALL ESTATE AGENTS RACE BIKES AT WORK?

While both sides accepted that there were corresponding common law (negligence) and statutory (health and safety) duties, the question of whether the event constituted ‘work’ was important for establishing the extent of the duty, as statutory duties in this instance were arguably stricter [34]. Unsurprisingly perhaps, the defendants argued that the event was not compulsory and that,

“the afternoon was intended to afford entertainment and enjoyment to staff in a social atmosphere, and for no part of their work.” [3]

By contrast, the claimant suggested that all employees were expected to attend, the event was managed and organised by the employer, would be to the employers benefit by fostering an esprit de corps and that there was no deduction from their salaries [35].

The Court struggled to pinpoint any case or principle on the limits of employment, trying unsuccessfully to apply traditional vicarious liability and the Salmond “close connection” tests [35]. Oliver Jones QC (sitting as the Judge) finally concluded that a jury would:

 “simply say that the defendant’s staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.” [37]

With respect though, it is difficult to see how this conclusion can be justified, indeed it is internally inconsistent with the conclusions over the employer’s assessment of risks and their duties under the Compensation Act (see later). How can an employer be liable for the organisation and management of an event [40], yet their employees not be engaged in a ‘work activity’ whilst attending it? When my employer arranges team-building events or away days, attendance is expected, especially if they fall on traditional working days. I thought that Lister v Hesley Hall Ltd [2002] widened the scope of employment and vicarious liability, not narrowed it to only traditional working activities. I can hear the reverberations across golf courses all around the country. The effect of this Reynolds definition of employment is that while you are concluding business deals or networking on the golf course, you may not actually be working!

The judgment also continues at [38] to suggest that justness and reasonableness would be offended if the Health and Safety at Work Act and associated provisions were ever intended to be applied to cases such as these. While it is true that the drafters of the Acts probably didn’t envisage bicycle racing estate agents and property consultants, however if these activities were being carried out as part of an employer-organised event, why shouldn’t they apply? Indeed isn’t that the subtext behind paragraph [46]?

“I have been referred to and considered the terms of section 1 of the Compensation Act 2006. Whilst the reward of employees by employers in ways such as that chosen in this case is a desirable activity, I am quite satisfied that requiring employers to take reasonable precautions for their employees’ safety will not discourage employers from doing it, or discourage employees from taking part. On the contrary, fun activities are likely to be more attractive if employees are assured that their safety has properly been considered.”

IS CYCLING DANGEROUS?

Crucially, the case hinged around the duty of Mr Church and Mr Backhouse (senior partners at the defendants) to arrange and to organise the event, and to ensure that their employees were reasonably safe in engaging with the activities laid on [40]. The problem was that the defendants risk assessment extended to prohibiting a proposed mountain biking activity as being unsafe [12]. They did not consider any of the risks associated with falling off a bike, or colliding with other riders during the race [24]. (As a very new cyclist, I can testify that both of these risks are patently obvious, indeed anybody that has watched me ride might even go as far as to say expected!) To suggest that the defendants were naïve in this respect is somewhat of an understatement. I accept that one might expect all riders in a professional race to be competent and to a certain extent this is self-selecting (although one only has to note Bradley Wiggin’s recent injury to see that collisions are a part of even professional races). In the current case though, the teams were randomly chosen with no pre-checks or the riders’ competency, indeed the cycle race did not even have a written risk assessment. While it is obvious that the defendants were not aware of the risks, this omission could have been identified had they sought the advice of the Fowlmead management in the risk assessment process, or as the Judge put it:

“This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use.” [42]

Given the failure to perform an adequate risk assessment, the Court was left with little choice but to conclude that:

“Neither partner organising the event had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors.” [28]

Even then, by itself, this failure was not a direct cause of the injury to Mr Reynolds, however following Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66, a failure to carry out an adequate risk assessment could be indirectly causative of the injury if the precaution it should have identified (cycle helmet) would have avoided the injury [41]. Sadly this was the case here.

SHOULD YOU WEAR A HELMET WHEN CYCLING?

While there is no law that suggests that the use of a cycle helmet is compulsory, the Health and Safety Executive (HSE) recommended their use and helmets were available at the event. Personal injury case law on cycling, most recently, Smith v Finch [2009] EWHC 53 QB (discussed in detail on this blog) also suggests that the failure to wear a helmet when cycling casually on the roads could amount to contributory negligence. Given that finding, it should come as little surprise that this principle is extended to sport:

“Those who engage in competitive racing, even for fun, or perhaps because it is fun, should be held partly to blame for the failure to protect themselves.” [45]

Because the claimant did not wear a helmet, despite suitable equipment being offered and available to him (even though only 1 other rider availed himself of a helmet), the Court held that this constituted contributory negligence.

My advice to any cycling event organisers – make sure that your riders wear helmets and don’t take Queen lyrics too seriously!