Sports Law Update March 2020 - Plexus Law

Sports Law Update

   March 2020

Ossett FC Case Background
• Ossett play in the North West Division of the BetVictor Northern Premier League
• The Claimant suffered a broken ankle playing for Radcliffe Borough in a game against Ossett Town in
   2015
• The Claimant was awarded just under £20,000.00 in damages
• Ossett Town have been faced with a £135,000.00 Court Order from Manchester County Court
• Ossett said the Club’s insurance policy does not protect them from damages or legal fees
• Ossett say that their insurance policy came “League Recommended”
• Ossett Town merged with Ossett Albion in 2018, forming Ossett United. The Liability was transferred to
  Ossett Town Ltd, also formed in 2018, who own Ingfield and currently rent the ground lease fee to
  Ossett United

The employment status of a footballer
The Courts have historically been called upon to determine the employment status of footballer. As long
ago as 1910, the Court held in Walker v Crystal Palace that a professional footballer was an employee and
that decision was further established by the Eastham v Newcastle United case in 1964.
The Governing Body of Football in England (FA) provides that a player must register with the association of
his Club and while so registered can only play for that Club. At the end of a season, players may be retained
by a Club. If retained, a player is banned from playing for any other Club but is not employed by the Club
and no contract existed until he re-signed with it.
The Claimant, a professional football player, was retained by the defendant Club who refused to transfer
him to another Club. The Claimant sought declaration that his Agreement with the Club and the rules of the
FA relating to retention were not binding as being in unreasonable restraint of trade and/or ultra vires.
After the writ was issued, the Claimant agreed to his transfer and this was duly carried out.
The Court held that the retention provisions operated in restraint of trade. The retention provision were
restrictions coming into operation after the employment was terminated and not as the exercise of an
option causing the employment to continue. The retention notice does not have the effect of re-employing
the player as he must re-sign a contract. Before re-signing, he will receive no wages. The retention
provisions, together with the transfer provisions, were more than what was reasonable for the defendants
to protect their interests. Therefore, the retention provisions substantially interfered with the Claimant’s
right to seek employment and operated in unreasonable restraint of trade and were ultra vires.

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But what of the amateur or non-league footballer?
The view of the Football Association in England is that a football player is either a professional player and
must be an employee, or he is amateur (and not an employee). There can be no dispute that any player
within the Premier League or Football League is an employee for he has to be engaged under the standard
form employment contracts that are the only documents which can be used in order to register a
player. But what of non-league Clubs?
The FA have issued guidance to what they refer to as ‘semi-professional Clubs’ stating that all contracted
players must be employees of the Club and can not be self-employed. Non-contract players however (who
make up the significant majority of players in non-league) ‘may or may not’ be employees, and the FA
advise that ‘this will depend on the nature of the relationship between the Club and the player’. The FA say
that if a player is not an employee of his Club it may be considered that he is ‘playing for the love of the
game’.
In essence, the FA’s position is that if a footballer is either professional or contracted by his ‘semi-
professional’ Club to play for them until a specified date in return for a salaried amount then he is an
employee; otherwise he is playing for the love of the game. A
For various reasons mentioned above, the Courts have had to distinguish between employee and an
independent contractor through several tests which assist in explaining the nature of employment.
The Court had used the control test in early practices. The control test questions who has the right to
control the servant (worker)? and to what extent. Generally, the employee is told not only what he/she
needs to do but also how it is done. The reason behind this degree is because the independent contractor
may be told on what he/she need to do but how it is done is on his/her own concern. In Yewens v Noakes
[1880] where Bramwell LJ stated ‘A servant (employee) is a person subject to the command of his master
(employer) as to the manner in which he shall do his work.’
However, the control test had evolved in later case of Walker v Crystal Palace Football Club [1910], Walker
was employed as a professional footballer with the defendant Club and it has become important to decide
whether Walker would be categorised under a contract of service or contract for service. The Court held
that he was employed under contract of employment because the Club had a control in the form of
training, discipline and methods of play.
As a conclusion an employee is a person who does the job on the basis of serving his/her employer,
whereas, an independent contractor is a person who does the job on his own account. The distinction
between both of them becomes important for the purpose of benefits and rights which are enjoyed by a
person who is entitled as an employee.

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Vicarious liability
Vicarious liability is a longstanding, common law principle of strict, no fault liability for wrongs committed
by another person. It occurs predominantly in employment relationships whereby the employer is held to
be liable for the wrong doing of its employee provided that there is a sufficiently close connection between
those wrongs and the employee’s employment. Accordingly, these “wrongs” are tortious acts which when
committed by a “tortfeasor” (i.e. an employee) will render the employer liable provided that there is a
sufficiently close connection between the act and what the employee was employed to do. The fact the
employer itself has not committed any wrong is irrelevant.
Whilst it has been argued that this doctrine is somewhat harsh on employers, its imposition in English law
is policy driven on the basis that it is the employers, rather than employees, who have the fiscal means and
deep pockets to compensate the losses suffered by an individual following a wrongful act committed by an
employee.
Ultimately, it is the employer who is able to spread the losses incurred when making any damages
payments, either through its liability insurance, price increases or otherwise. Furthermore, imposing strict
liability on employers encourages them to maintain standards of “good practice” by their employees.

The scope of vicarious liability depends largely upon the answers to two questions. Firstly, what sort of
relationship has to exist between an individual and a defendant before the defendant can be made
vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of
that individual have to be related to that relationship, in order for vicarious liability to be imposed on the
defendant? This is an evolving area where the boundaries are being pushed and widened, leaving
employers facing more responsibilities for the actions of employees.

Ben Collett v Middlesbrough FC 2003
Football injury claims are sometimes brought in the professional game, and in a notable case arising from a
tackle in a reserve match in 2003 a Manchester United youngster was so badly injured that he had to give
up professional football. He was awarded over £4 million by the High Court in lost earnings as a footballer,
the highest award of its type for a professional sportsman.
The award for future loss of earnings in this case was very high, but it is clear that Ben Collett was an
extremely talented player. He was supported in his claim by a number of witnesses, including Sir Alex
Ferguson, who gave evidence that his performance in the FA Youth Cup Final had been “absolutely
outstanding”. The trial Judge had to make an assessment of his potential earnings, which is not an easy
task in the competitive sporting world where success is not easy to achieve. However, the Court of Appeal
has endorsed the approach adopted and upheld the award.

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Player-to-player insurance obligatory
PL insurance – a Ccub can be held legally liable if proven that it was negligent or failed to take ‘reasonable
care’ to prevent injury to a member of the public or members of the Club or damage to property. This
liability arises because the Club and its members have a duty of care to avoid carelessly causing injury to
members of the public or damage to their property through the negligent act of the Club and/or its
members.
Personal Accident Insurance( PAI) – Personal Accident Insurance is designed to provide compensation for
players and officials following injury whilst playing, training and travelling to and from organised Club
activities. The Club does not need to have been negligent for a successful claim to be made.
The benefits of such cover include quick settlement for injured players and officials which, in turn helps
discourage no win/no fee courses of action and also illustrates that the Club has taken extra measures to
protect its players/officials. The policy can provide a range of weekly payments, and lump sum benefits for
Accidental Death, Permanent Total Disablement, loss of limbs, eyes, sight and hearing.
West Riding FA Insurance requirements 2017/2018 season
Personal accident insurance for Adult 11-a-side football has been mandatory for a number of years and has
proven to be extremely beneficial in providing protection and financial support to players at grassroots
level. The NGIS has paid in excess of £1.5million in claims since its inception in July 2012.
Personal Accident Insurance
Personal Accident Insurance provides financial support 24/7 worldwide by covering a range of injuries
from broken bones to those that could have a significant impact on the policyholder's life. Also cover if
time is spent in a UK hospital and, with our extended cover options, you can protect your children as well.
Personal Accident Insurance pays a lump sum for:
• Broken Bones – caused by an accident
• Accidental permanent injuries – including paralysis, loss of a hand or foot or loss of a major organ
• Accidental total permanent disablement
• Accidental death
• UK hospital stays as a result of an accident – from 12 months you are also covered for hospital stays
  from sickness
• Up to £10,000 Funeral benefit (subject to deferred period)
• Optional Child Benefit (Cover all of your dependent children from as little as £1 per month)
• Optional Active Lifestyle benefit to cover one dislocation and one complete tendon rupture or
  complete ligament tear in each policy year

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Personal Accident Insurance
Personal Accident Insurance provides financial support 24/7 worldwide by covering a range of injuries
from broken bones to those that could have a significant impact on the policyholder's life. Also cover if
time is spent in a UK hospital and, with our extended cover options, you can protect your children as well.
Personal Accident Insurance pays a lump sum for:
• Broken Bones – caused by an accident
• Accidental permanent injuries – including paralysis, loss of a hand or foot or loss of a major organ
• Accidental total permanent disablement
• Accidental death
• UK hospital stays as a result of an accident – from 12 months you are also covered for hospital stays
  from sickness
• Up to £10,000 Funeral benefit (subject to deferred period)
• Optional Child Benefit (Cover all of your dependent children from as little as £1 per month)
• Optional Active Lifestyle benefit to cover one dislocation and one complete tendon rupture or
  complete ligament tear in each policy year

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Useful Links
Football Club fears for its future after £135k injury claim
https://www.lawgazette.co.uk/news/football-Club-fears-for-its-future-after-135k-injury-
claim/5102253.article

Ossett United website statement
https://www.ossettutd.com/news/article/landmark-case-threatens-all-sport/

Ossett United facing six-figure Court order after landmark legal case
https://www.wakefieldexpress.co.uk/sport/football/ossett-united-facing-six-figure-Court-order-after-
landmark-legal-case-1-10110599

Insurance risk for small Clubs
https://www.hmfckickback.co.uk/index.php?/topic/185860-insurance-risk-for-small-Clubs/

nonleaaguedaily.com – Ossett United player ‘in jeopardy’ after Court ruling
http://nonleaguedaily.com/ossett-united-in-jeopardy-after-Court-ruling-over-player-injury/

Man Utd player wins £4.5m payout
http://news.bbc.co.uk/1/hi/england/7553678.stm

Employment status of non-league footballers
http://fullcontactlaw.co.uk/2017/11/employment-status-non-league-footballers/

Who shoulders the blame? An analysis of vicarious liability in the sports industry
https://www.lawinsport.com/topics/item/who-shoulders-the-blame-an-analysis-of-vicarious-liability-in-the-
sports-industry

Amateur Football Alliance – Make sure you’re covered
http://www.amateur-fa.com/players/player-support/insurance

Law Teacher – Eastham v Newcastle United Football Club
https://www.lawteacher.net/cases/eastham-v-newcastle-united-football-Club.php

West Riding FA – Protect your players, your Club and yourself
http://www.westridingfa.com/players/player-support/insurance

Accident and insurance cover
https://www.saveonlife.co.uk/personal-accident-insurance/?keyword=personal%20accident%
20insurance&gclid=EAIaIQobChMI17DcseLz5gIViLTtCh0Iww3EEAAYASAAEgKtuPD_BwE

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relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss
which may arise from reliance on information or materials published in this Document.

      Get in touch
      If you would like to find out more, please speak to your contacts at Plexus:

      Richard Salvini, Partner
      T: 0113 468 1820 | M: 07824 591 364 | E: richard.salvini@plexuslaw.co.uk

      Chris Foulkes, Partner
      T: 0113 468 1825 | M: 07557 391 631 | E: chris.foulkes@plexuslaw.co.uk

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