International Sports Law

International Sports Law

1. Explain how the law relating to negligence in sport has developed since Wooldridge v Sumner [1963] and how the notion of reckless disregard has influenced that development.

Within sports competition, negligence is the most common cause of people who suffer physical or psychological harm or injury. According to Collins (1984, p 39), “Everyone who participate in any form of sport and recreation, be it as an amateur or a professional, which faces runs the risk of injury, and the task which lawyers face is to distinguish between those injuries which the participants must accept as ‘occupational hazards’ and those which may seek compensation”. Negligence requires five core elements: duty of care, breach of duty, causation, remoteness and damage (Grayson, 1988).The origin case in this relation was Wooldridge v Sumner [1963] 2 QB 43, the jockey was not held liable and the court concluded that “unless the conduct of participant was to evince a reckless disregard or the conduct was reckless and in disregard of the safety of other players” the defendant can not be held guilty. The Court of Appeal held that “a spectator accepts the risk of a lapse of judgment or skill in a competition from a competitor who is going all out to win, but does not have to accept the risk of a participant having a reckless disregard for his safety.” This case had created a new standard of care for cases where injury was caused by the actions of a sports participant with a justification of particular importance to the sportsman considering the dynamics of sports (James and Deely, 2002). The expression ‘reckless disregard’ is the phrase that created a significant amount of complication in the legal circle and perhaps, also the future decisions in the Courts, as it appears to be a decisive statement regarding what amounts or exactly required to constitute negligence at a sporting event (Charlish, 2004). This case attracted severe criticism with this plea that it introduced a novel element into the law as it is unusual to find liability confined to recklessness because in most cases an error of judgment or a lapse of skill are sufficient to support a charge of negligence and the courts have not paid heed to the relevance of the phrase ‘careless disregard’ in the important cases related to negligence such as Condon v Basi [1985], Elliott v Saunders and Another QBD [1994], McCord v Swansea Football Club and Another [1997], Watson and Another v Gray and Another [1999] and Smolden v Whitworth and Nolan [1997].

In the key case of Smolden v Whitworth [1997] P.I.Q.R.133, “The High Court, in April 1996, Curtis J found the referee liable, but decided that the first defendant, Thomas Whitworth, did not cause the injury and that the plaintiff was not liable for contributory negligent. The referee lost his appeal in December 1996. Ben Smoldon was awarded ￡1.8 million for damages due to negligence, but received only ￡1 million, the maximum available under the English Rugby Football Union’s insurance scheme.” Despite of the referee’s responsibility that he/she should look after their player’s safety, there was no sufficient evidence to prove a breach of duty of care as the trial court did not consider the five propositions.

In British Law, the ordinary negligence has to take into account all the circumstances. In the key case of Condon v Basi [1985], the court held that there is a general standard of care owed, under which a player is under a duty to take all reasonable care, taking into account the circumstances in which he is placed. The court has ruled that the possibility to set up a liability except the defendant conduct out of the game’s rule (Jones, 2003). The Court of Appeal “appeared to be saying that a breach of rules is virtually necessary albeit not necessarily a sufficient requirement for liability to attach”. In the case of Elliott v Saunders and Aother QBD [1994], Drake J held that “the ordinary negligence standard used in Condon v Basi [1985] was applicable but went on to find that the defendant was not guilty of dangerous and reckless play and was therefore not in breach of the duty of care own”. In Waston v BBBC [2001], the BBBC owed a duty to take reasonable care to ensure that Waston receives appropriate medical assistance. It was demonstrated that ordinary negligence was not relevant to some propositions during the match. Hence the civil justice department should amend some regulations that could fit more for practical cases. There was an extension case of Vowles v Evans and others [2003] EWCA Civ 318, Vowles suffered a serious and permanent spinal injuries when playing in the rugby union. Firstly, Vowles sued his referee, the Court of Appeal held Evans liable for negligence. Apart from this, Vowles sued the defendant, the Welsh Rugby Union. The trial court accepted and determined that it belongs to the vicarious liability. Finally, “the claimant had reportedly been awarded ￡91,000 according to the disability cover provided by the Welsh Rugby Union to all its member clubs”.

Hence, it was indicated that the prevailing circumstance of ordinary negligence include the participant negligence, Rootes v Shelton [1968] A.L.R. 33, the root of Condon v Basi [1985] case according to the High Court of Australia decision. The Court held that “by engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises and if it does, its extent must necessarily depend in each case upon its own circumstances.” The position of referees, was determined in Smolden v Whitworth [1997] P.I.Q.R.133, The trial judge decided that the rugby referee was held negligent when his player suffered severe injures following a collapsed scrum.

In a landmark case, Caparo v Dickman [1990] the court established a ‘three stage test’ to determine whether the defendant owed duty of care to other person. “Is there reasonable foresight of harm? Is there proximity between the parties? Is it fair, just and reasonable to impose a duty of care? ”If the plaintiff can prove presence of all these three elements of negligence, in that case the respondent will be held liable under the negligence in tort law. Therefore, the duty of care has to relate to foreseeability, proximity and a fair just and reasonable imposement.

Another key case of Caldwell v Maguire and Fitzgerald [2001] needs to be mentioned here wherein the matter of reckless disregard was taken into account by the court. In this case the court came out with five propositions, which includes reckless disregard also, to determine the negligence issues. The Court of Appeal took into considered the prevailing circumstances and the judge ruled that “the claimant had to establish recklessness, so there will be no liability for errors of judgments, oversights or lapses of which any participant might be guilty in a fast-moving context”.

In the case of Blake v Galloway [2004] the court has once again went back to the standard of reckless disregard followed in the case of Wooldridge v Sumner [1963] 2 QB 43 long back. The court in this case held that “there is a breach of the duty of care owed by participant A to participant B only where A’s conduct amounts to recklessness or a very high degree of carelessness.”

The negligence is the most prevalent reason for legality in the cases related to sports in tort law. The matter of reckless disregard, which first introduced in the matter Wooldridge v Sumner [1963] 2 QB 43 was though not appreciated by the court whole heartedly but remained an important aspect in the deciding the negligence cases.

Table of Cases

Blake v Galloway [2004]

Caldwell v Maguire and Fitzgerald [2001]

Caparo v Dickman [1990]

Condon v Basi [1985]

Elliott v Saunders and Aother QBD [1994]

Rootes v Shelton [1968]

Smolden v Whitworth [1997] P.I.Q.R.133

Vowles v Evans and others [2003] EWCA Civ 318

Waston v BBBC [2001]

Wooldridge v Sumner [1963] 2 QB 43

2. Discuss the application of the criminal law to incidents occurring on the sports field.

Recently, violence within sports has been increasing, thus there is urgent need of sports law (Grayson, 1999). When one person intentionally or recklessly hurts another person and his purpose was to arrest the opposite player catching the ball or for reason of sheer assassinate, then his conduct was a violate breach of criminal law (Grayson Bond, 1993).

Firsty, if the sport athlete’ behavior was a law offence, the court should demonstrate the sport person’s actus reus and mens rea. The following three stages establish criminal liability:

1. “The mental element or mens rea. This is the state of mind of the accused, such as intention or recklessness, as required by the relevant offence. Recklessness is the conscious taking of an unreasonable or an unjustifiable risk (Gardiner, 1994 and Omerod and Leake, 2005).”

2. “The actus reus or the causing of the resulting harm. Criminal liability for Offences Against the Person is a very individual matter. For example, it must be proved, beyond reasonable doubt, that the accused or defendant did, for example, punch or kick the victim and that this is what caused the resulting harm specified in the offence (Hazel, 2009).”

3. “The absence of a lawful justification, excuse, mitigation or defence. For example, consent, self-defence, reasonable chastisement, or consensual horseplay, can all be used in response to Offences Against the Person, such as s.47,s.20 or GBH with intent, (s.18) in relation to conduct on the sports field (Hazel, 2009).”

The original case of R v Bradshaw [1878] 14 Cox CC 83, Bramwell revealed that “if a man is playing according to the rules and practices of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury. But, independent of the rules, if the prisoner intended to cause serious harm to the deceased, or if he knew that, his act might produce serious injury and was indifferent and reckless as to whether he would produce serious injury or not, then the act would be unlawful. In either case he would be guilty of criminal act and you must find him guilty; if you are of a contrary opinion you will acquit him.” According to this case, there is an existing exception concerned with the player body hurt in the sports sphere, in the case of Ferguson v Normand [1995] SCCR 770, there was an important issue made. When acts go “well beyond what can be regarded as normal was determined to physical contact”, it makes up a duty to condemn and punish. The convicted of assault 3 months and max possible 6 months.

There were many cases of public criminal offences, such as “1986 POA criminal offence which was a public order offence, S2 POA criminal offence was violent disorder, S3 POA criminal offence was affray, S5 POA criminal offence was causing harassment, alarm or distress and S4 POA criminal offence was threatening behavior.” The case of R v Billingshurst [1978] Crim LR 553, “kicking an innocent victim in the head with great force, when he was lying on the ground, in an off-the-ball incident, was regarded by the criminal courts as ‘vicious and barbaric’ and ‘had nothing to do with the rugby football or play in progress’”. In the case of R v Brown [1993] 2 W.L.R.556, a player could be held responsible for a criminal offence for sports violence if his or her conduct showed intentional or reckless behaviour to cause serious body harm beyond the inherent risks of injury. “Standing on the point of law, the person could not consent to having bodily harm inflicted upon him or her and any exceptions to this would be based on public policy (R v Brown [1994] AC 212)”. Therefore, Jauncey concluded that “thus except in the case of regulated sports the public interest required that injuries should not be inflicted in public where they might give rise to a breach of the peace.” Another case was R v Barnes [2004] EWCA Crim 3246, “Barnes was convicted on one count of unlawfully and maliciously inflicting grievous bodily harm on Christopher Bygraves, contrary to s.20 of the Offences Against the Person Act 1861. The defendant successfully appealed against the conviction in the EWCA which related to specific aspects of the trial judge’s summing up.” Hence, there are six factors of circumstances (heat of the moment), which should be taken into account, such as the type of sport, the level being played at, the nature of the act, the degree of force used, the extent of risk of injury and the defendants state of mind. In addition, the jury questioned “whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgment in the heat of the game and a criminal prosecution should be reserved for those situations, where the conduct is sufficiently grave to be properly categorized as criminal”.

In conclusion, when it comes to criminal liability, it is necessary that the following three factors are considered: the public interest, the playing culture and the threshold at which an action becomes sufficiently grave.

Table of cases

Ferguson v Normand [1995] SCCR 770

R v Billingshurst [1978] Crim LR 553

R v Barnes [2004] EWCA Crim 3246

R v Bradshaw [1878] 14 Cox CC 83

R v Brown [1993] 2 W.L.R.556

5. Richards v. U. S. Tennis Ass’n 1977 represented a landmark for male to female transsexuals wishing to compete in top level sport. The Gender Recognition Act 2004 however has failed to build on that decision and left transsexuals at the mercy of sports administrators – Discuss.

Transsexual’s sports participation has always been subjected to controversies and legal issue. In this regard the judgement in the case of Richards v U.S. Tennis Association [1997] is considered to be landmark in many aspect, which in subsequent years effectively neglected.

Richard in the said case challenged the US Tennis Association’s decision to make her undergo sex chromatin test (a sex determination test) to qualify for participation in US Open Women Tennis Championship (Fee et al, 2003). She placed her all medical record and contested that for all intend and purposes she is psychologically, physically and socially an woman (Richards v U.S.Tennis Association [1977] ). The New York county Supreme Court ruled that Richards’ rights under New York’s state antidiscrimination law were violated. Such a test could only be considered one factor among many, including external genital appearance, internal sex characteristics, psychological profile, physical appearance, hormonal balance, and social identity (Richards v U.S.Tennis Association, 400 N.Y.S.2d267 [1977]). And Richard was allowed to participate in the US Open Women Tennis Championship without having to undergo sex chromatin test. The highlight of judgement was that it included many other factors in the gambit of sex determination test. But subsequently when Gender Recognition Act 2004 came finally into implementation the very spirit of judgement of Richards v USA U.S.Tennis Association [1997] was lost.

In May 2004 the International Olympic Committee (IOC Guidance and Concensus, 2004) announced the conditions under which transsexual athletes may compete in sports competitions. This announcement follows a period of consideration and consultation carried out by transsexual people and an ad hoc committee convened by the IOC Medical Commission. These conditions were applied as of the Athens Olympics in 2004. Which stipulates that “Any transsexual women who underwent sex reassignment surgery before puberty should be accepted in sport as girls and women (female).” This also applies to individuals undergoing female-to-male reassignment, who should be regarded as boys and men (male).

The group also recommends that individuals undergoing sex reassignment after puberty is eligible for participation in the acquired gender under the following conditions (IOC Guidelines, 2004):

• “Surgical anatomical changes have been completed, including external genitalia changes and gonadectomy (the surgical removal of the testes or ovaries)”

• “Legal recognition of the acquired gender has been conferred by the appropriate official authorities”

• “Hormonal therapy appropriate to the acquired gender has been administered in a verifiable manner and for a sufficient length of time to minimise gender-related advantages in sport competitions.”

• “In the opinion of the group, eligibility should begin no sooner than two years after gonadectomy. A confidential case-by-case evaluation will occur.”

In the event that the gender of a competing athlete is questioned, the medical delegate (or equivalent) of the relevant sporting body shall, as now, have the authority to take all ‘appropriate measures’ to determine the gender of a competitor. The 2004 Gender Recognition Act which incorporated IOC Guidelines in toto was also clearly based on apprehension about transsexuals’ ability advantage.

The Gender Recognition Act 2004 was introduced by the Parliament of the United Kingdom, allowing transsexual people to register and change their legal gender (Department of media Culture and Sports, Sports Division).

This Act came into effect on 4th April 2005 (Russell et al, 2008). This Act has provided a right for transsexual people to register and grant full recognition for their required gender. For an individual, he or she has lived in a required gender for two years to receive the new birth certificate, while privacy and marry was permitted (Hartley, 2009).

But the contention that work against transsexuals was section 7 Para 19 of Gender Recognition Act 2004, which states that “A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act”. This regulation was relevant with the S. 44 the Sex Discrimination Act 1975, it forces each case to consider its own plus points before the judge make the final decision. In the case of P v S and Cornwall CC [1996], transsexual was dismissed as the sex discrimination act was not applied. “The ECJ said Euro directives did preclude discrimination on such grounds”. Another case was Chessington World of Adventures v Reed [1998], an employee was abused after announcing an intended change in sex. “The EAT ruled that this is discrimination as it is unlawful under the SDA”.

The case of Heather Sue Mercer v Duke University [2001] was sex discrimination. Mercer was a football player at Duke University football team, but she was refused to play in the match even as a substitute player. Despite of the Duke University elucidated that they did not do any discrimination behaviour for Mercer, the court decided and “awarded $1 million compensatory damages and $2 million punitive damages to Mercer.”

Hence it is obvious; despite the legal safe guard in terms identity, marriage, changing rooms access for transsexuals under various provision of Gender Recognition Act 2004, it left transsexual sportsperson at the mercy of sports governing bodies while participation in high performance sports was concern, due to section 7 and Para 19 provisions (Gender Recognition Act 2004). This is of course to done away with any residual competitive advantage transsexuals might have due to previous history and ensure level playing field in women sports ( Donohoe, 2002). Nevertheless if it seen in the context of judgment of Richards v U.S. Tennis Association [1997] the Gender Recognition Act 2004 looks to have narrowed outlook and clearly restricted the sex test to physical factors mainly. And quite obviously transsexual sportspersons are in disadvantage (Donhoe, 2002).

Table of cases

Chessington World of Adventures v Reed [1998]

Heather Sue Mercer v Duke University [2001]

P v S and Cornwall CC [1996]

Richards v U.S. Tennis Association [1997]

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