Seamus Coleman: Negligence, Reckless Play & club remedies for players injured on international duty

Friday night’s World Cup qualifier between the Republic of Ireland and Wales took a turn for the worse in the 69th minute when Seamus Coleman (ROI and Everton) sustained a double fracture to his tibia and fibula, on the right leg, when Neil Taylor (Wales and Aston Villa) “went in hard” on Coleman with his studs up.

Coleman was stretchered off the pitch and the following day underwent surgery to have metal pins inserted to fuse the bones together. He is now expected to be out of action for at least six months. At this stage, there has been no suggestion that the injury is career-ending but it is undoubtedly a horrendous career-threatening injury. The challenge has since been widely criticised by football professionals and fans alike, with some calling it reckless and negligent. But what constitutes negligent, reckless play, in law?

Proving negligence

To succeed in an action of negligence, the victim player must be able to prove three things:

• That he was owed a duty of care
• That duty of care was breached
• The damage suffered was caused by that breach

In contact sports, such as football or rugby, all participants owe a duty of care to one another. In order to show a breach of that duty, the conduct must be reckless and fall below the standard required of a reasonably skilful and competent professional player. It must be an act that is more serious than an error of judgement. Thereafter, the injury suffered must be foreseeable. For example, it must be the type of injury that one would expect from a foul or tackle. Given that, the test for negligence in the sporting world is a high threshold to meet.

In the game of football, a case for negligence will fail if the pursuer is unable to prove anything other than an error of judgement. A defender must have acted recklessly, with lack of care, so as to breach his duty to exercise reasonable care in all the circumstances.

In order to prove a successful case for sporting injury, you must ingather as much evidence as possible to support your case. Below is a summary of some evidence that may assist your case:

• Photographic or video evidence
• Eye-witnesses
• Referee opinion
• Expert evidence

In sport, it is not always the assailant who is open to being sued – players, clubs, governing bodies and referees can also find themselves subject to legal action.

Past cases

Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC [2008] EWHC 1962 (QB)

18-year-old Collett was playing for Manchester United in a match against Middlesbrough FC. In the course of the game, he was tackled by the first defendant. The tackle was high and over the ball and, as a result, Collett sustained a fracture of the tibia and fibula of his right leg.

Collett pursued damages for injury, loss and damage caused by the negligence of Smith. Collett chose to pursue Middlesbrough FC (rather than Smith himself) arguing that they were liable for their employee’s actions, given that he was connected to the club and acting in the course of his employment as a professional footballer. In particular, Collett claimed for future loss of earnings as a result of not being able to pursue a successful career as a professional footballer and thereafter, as a football manager or coach.

Middlesborough FC admitted liability and it was for the Court to determine the final settlement figure.

Held: Award in excess of £4.3 million including:

• General Damages: £35,000
• Past Loss of Earnings: £456,095
• Future Loss of Earnings: £3,854,328

Paul Elliot (Chelsea FC) v Dean Saunders & Liverpool FC (unreported)

Elliot sued Saunders & Liverpool FC for causing a knee injury that ended his football career. Elliot first attempted to bring a case for battery but it was later discovered that Liverpool FC’s insurance would not payout on such a claim as the policy excluded deliberate injuries. As such, it would not be in the best interests of Elliot to restrict the number of defendants and therefore he concentrated on a claim for negligence instead. Elliot proved that he was owed a duty of care by Saunders and that he had breached that duty, given the nature of the tackle. That was accepted by the Court, but Elliot was advised that he also had to prove reckless play and as such, that Saunders had failed to exercise a reasonable standard of care in his tackle.

Video evidence was submitted to the Court and considered along with evidence from match officials. The Court favoured the evidence provided by the officials in that Saunders was attempting to “play the ball” and had not acted recklessly. It was also recognised that Saunders had raised his feet, at the last minute, to also try and avoid injury to himself. The Court considered that such reactions that occur in the heat of the moment could not amount to liability. Given that, Liverpool FC was held not to be vicariously liable and the case failed.

McCord v Swansea City Football Club (1997) Times, 11 February

In this case, former Stockport County player, Brian McCord sued Swansea City Football Club following a career-ending injury that occurred after Swansea captain John Cornforth challenged for a loose ball, raising his leg above the height of the ball and connected with McCord’s leg. It was alleged that such a tackle was negligent. The Court held that Cornforth’s conduct was inconsistent with the usual standard and has failed to take reasonable care. Swansea City was thus held vicariously liable for the actions of Cornforth.

Watson & Bradford City FC v Gray & Huddersfield Town FC QB (1997)

In this case, Gordon Watson and his club, Bradford City, raised an action against Kevin Gray and his employer, Huddersfield Town. The action followed a fixture back in 1998 where Watson sustained a double fracture to his right leg after a bad tackle from Gray. As a result, he was out of the game for 18 months. In determining its decision, the Court stated that the test was to ascertain whether the reasonable professional player would have known that such a tackle would have resulted in a significant injury. The Court also considered the contention that professional players consent to such risks. However, the Judge concluded that the tackle met the test of negligence (as described above) and was described as “very dangerous, appalling, diabolical and quite unacceptable”, he rejected the argument that players consent to such tackles. Watson was thus successful in his claim for damages.

Pitcher v Huddersfield Town FC [2001] All ER (D) 223 (Jul)

In this case, Crystal Palace’s Darren Pitcher pursued damages against Huddersfield Town Football Club after a late tackle resulted in a knee injury that put an end to his career. However, the Court held that the tackle was mere ‘an error of judgement’ and did not meet the ‘high threshold’ to attract liability. The tackle was described as the type that you would see ‘up and down the country every Saturday of the football season’, despite it being against the rules.

As you can see, the bar to attract liability and compensation is very high indeed but the above cases serve as a stark warning as to the potential legal implications of reckless tackles and similar challenges whilst on the pitch.

Club compensation for players injured whilst on international duty

Tensions regarding sporting injuries are particularly fraught between team clubs who pay the footballer a salary and the national teams who select their players for international duty. For decades, the team clubs argued that the national governing bodies should pay compensation to the clubs for releasing players.

One of the major turning points for those tensions came with the case of Sporting Club Royal Charleroi v FIFA. This case concerned first division Belgian club, Royal Charleroi, who alleged that FIFA should pay them compensation (1.25 million Euros) for injuries caused to star player, Abdelmajid Oulmers, whilst on international duty for Morocco. Royal Charleroi advised FIFA, prior to the match, that Oulmers was injured and should be rested. Despite this, FIFA insisted that Oulmers play in a non-competitive friendly match between Morocco and Burkina Faso. Oulmers’ injury was aggravated and he was unable to play football again for eight months. Sporting Charleroi alleged that their failure to win their domestic championship was as a result of the loss of Oulmers.

Charleroi’s claim was supported by the G14, an association formed by Europe’s most powerful clubs, who were dissatisfied with UEFA decisions that affected them and felt that they required representation during decision-making. The G14, at the same time, brought their own claim, in the sum of 860 million Euros, in costs that had not been paid to clubs whose players had been representing their country for free whilst clubs continued to pay their wages.

In January 2008, and against the backdrop of the European Championships, UEFA, FIFA and the G14 negotiated a guarantee that compensation would be paid to clubs releasing their players for the Euro 2008 tournament. However, this was under the obligation that all existing actions (including the Oulmers case) would be dropped. This meant that a court never ruled on the Oulmers case.

In light of the above, UEFA & FIFA have both setup insurance funds to compensate clubs for injuries during international tournaments, such as the World Cup and the Euros. The funds tend to cover: temporary total disablement, permanent disablement and death. Compensation for temporary injuries is capped in the region of around £40,000 per week under the notion that when it comes to the biggest players, clubs can benefit from their marketing power and reap awards from commercial pursuits such as advertising/sponsorship etc.

The introduction of the insurance funds removed the potential for much of the liability disputes that surround international tournaments. UEFA & FIFA both recognise the contribution of clubs to international tournaments as well as the huge implications for them in terms of player injuries. The insurance funds were set up to settle club and national disputes before they get off the ground.

Whilst Everton will no doubt be negatively impacted by the loss of Coleman for at least six months, the compensation provided by FIFA will ease the financial burden of supporting an injured player by covering costs for any future medical investigations related to the injury as well as salary.

Get in touch

If you would like to find out more about any of the issues raised in this article, please get in touch.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.