Singer & Friedlander Review 1998-99 Season

Singer & Friedlander
Football Review
1998-99 Season

 

Produced in association with and hosted by
The Centre for Research into Sport and Society at the
University of Leicester

'Hard Cases' in Court

by Martin Roderick
Centre for Research into Sport and Society, University of Leicester

Bradford City striker, Gordon Watson, was seriously injured last season following a tackle which was described by football pundit, Jimmy Hill, as "late, dangerous and violent". During a First Division match in 1997, Watson was injured by a high two-footed tackle five minutes into the match by Huddersfield Town's Kevin Gray. The tackle left Watson with a double fracture which required five operations and the insertion of a six inch metal plate. In October, 1998, Watson successfully sued Gray for negligence at the High Court in Leeds and was awarded £50,000 in interim damages. In May 1999, Watson was awarded approximately £900,000, the bulk of which was to compensate for the loss of anticipated earnings. Kevin Gray maintained that the injury was an accident and said that, when he went for the tackle, he was hoping to get the ball and believed he could do so. He said, "Once I was off the ground, I was totally focused on the ball but, unfortunately, Gordon nicked it away at the last minute and, unfortunately, I collided with his right leg". Jimmy Hill claimed that the tackle was the worst he had seen in fifty years of football. Commenting in court he said, "It was clearly reckless and wild. It offended against both the unwritten as well as the written code of the game." Outside court, the Bradford City Chairman Geoffrey Richmond said, "Hopefully, the football field from here on will be a safer place".

Over recent seasons there has been a small, but significant, number of cases of negligence brought against professional footballers by their fellow players, most notably perhaps the case involving Paul Elliott, whose playing career was ended whilst at Chelsea FC following a collision with Dean Saunders. In this case, Dean Saunders, who at that time was playing for Liverpool FC, was acquitted of recklessness and negligence on the grounds that, in the judge's opinion, he had merely been attempting to make a legitimate challenge. These cases, and other less high-profile cases, expose some interesting discrepancies and injustices in terms of the intersections between violence, law and professional football.

The majority of incidents in professional football are dealt with by The Football Association whose internal disciplinary mechanism is designed to ensure that the game is played 'properly', to protect players and to uphold the values of the game. Those players who transgress the rules may face punishment. Although a formal relationship exists between criminal and civil law punishments and The Football Association's disciplinary procedures, in general, The FA's decisions have tended not to undergo judicial review, as the law has a tendency to treat domestic sporting activities as private activities. Only on rare occasions have players, who are guilty of misconduct, been 'punished twice'. There are two central problems in all violence-related legal cases involving professional footballers. Firstly, contact is an integral feature of football. Particular types of contact are expected among players, even when they 'appear' to go beyond the rules of the game. Certain behaviours can occur so frequently that they fall within the 'ordinary' risks of the game which are accepted by all players. Secondly, to date, the law has not operated as an effective violence-control mechanism. Many players are deterred from taking legal action because of the costs involved and the uncertainty of the outcome.

The 'violence' viewed on football pitches is particularly difficult to define in legal terms, not least because integral to football is a level of contact far in excess of that which would be acceptable in most other walks of life. Criminal law seeks to control all forms of violence and would claim to treat all cases, sport-related or otherwise, in a consistent fashion. However, this claim is rarely upheld as far as on-the-pitch football violence is concerned. In criminal cases there must be intention to cause harm and as collisions are commonplace in football, most 'reckless' challenges occur, it is argued, in the heat of the moment. The football authorities gave up attempting to assess whether a foul was deliberate or not, when they removed the term "intentionally" from Law 12 which concerns "fouls and misconduct". Furthermore, particular types of behaviour can occur so regularly in the course of a game that they become legitimised and, consequently, immune from both internal disciplinary and criminal sanctions.

One interesting example of this is what appears to be the increasing use of the arms and elbows in football. In a game at the beginning of the 1993-94 season, an aerial challenge between Spurs defender Gary Mabbutt and Wimbledon's John Fashanu caused multiple fractures to Mabbutt's cheekbone and eye-socket. Mabbutt took no immediate action over the incident, although later that year he complained to The FA in order to "highlight the types of injuries that have been caused, in general, by elbows" (The Times, 27/12/93). The FA took no action over the incident as it proved impossible to conclude, even when using extensive video evidence, whether Fashanu intended to cause harm. In addition, no legal action was taken despite the fact that Mabbutt was unable to play for a full season. The discrepancy which lies at the heart of this issue concerns courts which, on the one hand, are at pains to view all violent conduct consistently, yet, on the other, must decipher whether intent was involved in the kind of challenge which might occur on average about fifty times per game.

The primary reason why most cases of violent conduct are never considered for prosecution is that there exists an assumption that all players accept that they may be injured as a result of playing; that is, players consent to some degree of contact which may cause harm as part and parcel of their occupation. This matter is a grey area legally as consent is not expressly given. Players do not say before a match they are willing to accept the injuries they may receive. Through a legal lens, however, the act of participating, in and of itself, implies consent on the part of players to some degree of contact in the name of sport, and thus to accidental injuries caused via deliberate contact. Legally, however, this consent does not extend to the infliction of actual bodily harm. To complicate things further, informally, players appear to accept that they are likely to be involved in collisions which extend beyond the rules but remain within the playing culture. Notions of playing culture are significant in this regard as they may define, firstly, the particular types of action which players expect from participation, and secondly, the extent to which consent can legitimise frequent and familiar types of play.

Most legal cases concerning footballers involve attempts by players to receive compensation for pain and suffering, and also for lost income caused by the injuries resulting from 'bad' tackles. This was the type of case brought to court by Gordon Watson. In short, what this means is that the tackle by Kevin Gray dropped below the standard of care expected from a fellow player. Once again, in circumstances in which players are more involved in playing the game than pondering the consequences of legal action, the difficulties inherent in such a judgement stand out. For example, how 'badly' must the game be played before a player's conduct is considered negligent? What is the standard of care against which a player is to be measured? How, in the heat of the action, can you assess the state of mind of a player? Given these difficulties, the ruling made by Mr Justice Hooper concerning the tackle by Kevin Gray is all the more significant.

Will football pitches be safer places for players to play in future, as suggested by Bradford City Chairman, Geoffrey Richmond? I doubt it. So far, the mechanisms of violence-control in professional football, that is The FA's disciplinary tribunals, criminal and civil law, have lacked effectiveness. For years, hard, uncompromising tackling has been treated as part of the game. Some players have actively sought an identity as a 'hard man' and many of these players continue to be romanticised by fans and journalists alike. Where the line between playing the game and assaulting an opponent is to be drawn is the central problem for the law, and this problem is compounded by the fact that mistakes, misjudgements, and the mistiming of tackles are an integral part of football and the way it is played. From the point of view of players such as Danny Thomas, Paul Elliott, Gary Stevens and many others, however, such misjudgements are, indeed, costly. A combination of increasing financial rewards and a greater awareness of legal rights has led more players in recent seasons to seek legal action, yet there exists a further problem for players. Following the successful ruling in Leeds, Gordon Watson said that he had "no feelings whatsoever" about Kevin Gray. Why not? Apart from the costs and uncertainties involved, it is probably the case that players are also reluctant to accuse their fellow players of misconduct. In short, they do not wish to be seen as a 'complainer' and to be breaking-ranks from among their 'own'. Whilst players believe themselves to be at little or no risk of prosecution, token accusations of 'bringing the game into disrepute', will, I guess, continue to be viewed as an ineffective response to 'late' tackles.


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