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This piece is loosely based on a guest lecture given at the Public Library in Malmö on 20th May 2003. It is intended as an overview of, or as an introduction into, a number of complex and contentious arguments. In particular it seeks to illustrate that the relationship between sport and the law is a vexed one, and the lines of demarcation between the two entities are not always easy to draw. One key issue is the contrast and tension between self-regulation (via the sport’s authorities) and external regulation (by the application of law). In particular, this hints at a central dilemma – where and when should the law become involved within sport? What is clear is that law is further encroaching into a number of different areas of sport and that self regulation is threatened in a number of areas. This has serious implications for those involved with the administration of sport. This piece illustrates some of the debates in the area and, in particular when law overrides the idea of self-regulation. As such this deals with three central components. Firstly the example of Roy Keane will be used to illustrate the inter-relationship and overlap between the law and self regulating regimes within the context of sport. Secondly, the question of what the law can contribute to sport is briefly considered as a means of introducing the debate over law’s applicability to the area. Lastly, some examples of the application of law to sport will be analysed, particularly in the areas of criminal and civil law, before considering where the law may be moving towards next. Many of the issues touched upon here relate to work we have conducted and covered in more depth in Regulating Football (Pluto Press, 2001). 1) Double Jeopardy? Roy Keane and the rule of law During the 1997/8 FA Premier League (PL) season Roy Keane suffered a serious cruciate ligament injury following a challenge with Alf Inge Haaland. Keane (2002, p171) details it thus in his autobiography:
Keane was upset, to say the least, by both the challenge and the reaction of the opposing players to his injury. The issue played upon his mind over a long period of time as his autobiography makes clear, until he was eventually able to ‘exact his revenge’ in a premeditated fashion during the Manchester derby in 2001, when Keane was sent off and banned for four matches for fouling Haaland. That may have been the end of the matter had it not been for the furore that greeted the following statement;
Following the publication of his autobiography Keane, Roy Keane was found guilty on two charges of bringing the game into disrepute, at a Football Association hearing and given a five-match ban and a record £150,000. Even apart from the newsworthy element to Keane’s actions, the interesting aspect of this for our purposes is a consideration of how, potentially, the internal disciplinary mechanism of professional football and the general legal provisions might interact in such a case. In a hypothetical sense, Roy Keane was potentially subject to a number of actions and punishments on the basis of his action(s). Internal Regulation
External Regulation
Mark James (2002) deals with these potential legal actions (and others, we have mentioned the key ones here) in depth elsewhere, but the crucial point of this for our purposes is the interaction and overlap between two systems of regulation – the internal (the sport itself) and the external (the Law). A similar debate was played out with Eric Cantona when he was punished by his Club (Manchester United), the Football Association (his Governing Body) and the State for his assault on a spectator in January 1995 (Greenfield and Osborn, 2001, 103), the issue being, is it right for the law to impose itself within an arena that has attempted to regulate itself? 2) What does Law Contribute to the Regulation of Sport? There are two distinct UK approaches to this question. The first perspective views sport as just another part of civil life. Accordingly, law applies to this area in exactly the same way as it would to any other area of civil life. On this approach, an injury on the sports field caused by carelessness can be equated to a similar injury in any other workplace. The best-known exponent of this view is Edward Grayson:
Further to this Grayson had previously argued:
This might be termed the ‘might of law’ approach. One alternative approach to this is to work from the premise that we should seek to restrict the law from the playing field action wherever possible. This view is perhaps best articulated by Simon Gardiner, and there has been a long dialogue played out in academic sport law circles over this very point:
However, in one sense these two views are closer than it might initially be thought, as to whether the law should ‘cross the touchline’. Effectively, both accept that there is some role for law on the playing field. The following quotes further illustrate booth the two traditional views and the common ground that they actually share:
In fact, a question that might be posited is whether the law can, or ought to enter the sporting arena at all:
Can we make a case that sport is different or immune from the clutches of law? This is an argument that has been played out within the context of Jean Marc Bosman, and the arguments of the Governing Bodies: that football is more than a mere business, that football has particular cultural characteristics that mean it ought to be treated differently from other areas of everyday life; that Sport is special, and that sport is in need of protection from the law if it is to survive. An interesting example of the approach of law can be seen in the area of physical contact sport and how the law deals with the technical legal transgressions that are commonplace within that. The situation in the UK is a confusing one, full of contradictions, and there are a number of distinct levels of regulation. On one perspective we have two levels that interact:
An infringement of (1) may affect (2). However, the notion of consent has to be applied in some form, the question becomes one of what can someone consent to within these regulatory frameworks:
So we have a theoretical view supported by judges and academics that sport is no different from any other human activity and that it should be legally regulated and the argument should then switch to how does this regulation occur. However we would argue that this first premise is false, that sport is different and that the law ought to, and in many areas does, recognize this. Sport is based on a different set of values than other areas of civil life. The situation is further complicated by the norms that exist within the playing culture of the sport itself. We might see the threads of acceptable conduct falling within three concentric circles where each system exists within the framework of the outer ring:
Here we see that the ways in which sport is regulated is also effected by an inner working culture, a culture outside of the laws of the sport, and certainly outside of the criminal or civil law, but reflecting a normative structure that all participants are versed in and expect. 3) How does the law apply to sport? We can identify three levels to the law’s interaction within sport
We have chosen select examples of these to illustrate the ways in which the law has become interrelated with football specifically, and sport generally. Criminal Actions 1) Policing Player Conduct An awkward area; there were suggestions that Roy Keane should be charged with a criminal offence but this was ignored. There are few examples of players being charged with criminal actions (some in Scotland). But an interesting example is provided by the Cantona incident alluded to above:
2. Corruption Corruption, in terms of match fixing, has not been a major issue in the UK with respect to football aside from a few isolated incidents. Interestingly it is (international) cricket that has found itself at the centre of enquiries of this nature. In football, allegations have related to improper conduct with respect to player transfers and allegations of personal enrichment; this led to the adoption of the ‘Bung Inquiry’. 3. Public Order and Spectators This is an area where the UK has legislated to address problems of hooliganism over the past 16 years. There is a real debate as to whether this is an effective way of dealing with the problem, or merely serves to shift the problem elsewhere or not even deal with it in practical terms in any event. For example, whilst the legislation available is now technically formidable, it is only of any use if it has any effect, as the example below shows. Swansea City v Millwall 10/02/01 – Nationwide League Division 2 Just after the game had re-started, an attempt was made by Swansea to get at the Millwall fans. By climbing up on to the trackside the Millwall supporters attempted to climb the 8ft high perimeter fence to attack the Swansea supporters. After the match the Swansea group again subjected the train escort to continued attacks. They were again kept apart by officers supported by mounted and dog units. Prior to the escort setting off, a search was made of the route and a cache of petrol and milk bottles with rags together with marine flares were discovered concealed in undergrowth near the foreshore. Civil Actions 1) Transfer Regulations The issue of player registration and transfers, and the related issues of contract enforceability has undergone a period of marked change as both domestic and international law has begun to tackle the issue.
We are now witnessing something of a downturn with attempts to restructure contracts and get rid of players either through buying up contracts or finding methods of dismissing players. 2) Negligence Actions This has been something of a growth area with an increase in the number of actions being brought between players, the law of tort and in particular the area of negligence has developed to allow a consideration of such an issue. In fact the idea that a player owes a duty of care to another player is not contentious, the key issue is whether that duty of care was breached and whether this act caused the damage.
Perhaps the most noteworthy recent English example of this involved Gordon Watson, formerly of Bradford City Football Club:
In this case, Watson succeeded in his claim against both the club and player:
Both of these determinations are of course essentially speculative. In determining the damages, evidence was heard from a number of expert witnesses concerning Watson’s future prospects. The judge found that he would have excelled in the First Division, moved back to a Premier League club within a year of his transfer to Bradford City and signed a four or a four and a half year contract with a Premier League club. Such actions are undoubtedly the precursors for more complex and innovative actions. Latterly for example, we have seen potential actions mooted including possible claims for brain damage caused by heading the heavier leather balls used in the 1950s and 1960s, and in other sports such as rugby we have seen referees sued for their failure to control a game where that failure has led to an injury being suffered. What once may have been seen as an accident on the sports field is now more and more likely to be seen in terms of compensatory possibilities and legal argument. 3) Spectators (civil) There have been sporadic attempts made by supporters to take civil actions against football clubs. Clearly, in the case of the supporter attending a live game, the relationship is contractual and there may be claims based upon the expectation of what that contract should entitle them to. There have been examples of more symbolic or frivolous attempted actions (often based around the issue of whether the product was satisfactory under consumer legislation or trading standards issues) that have been largely concerned with making a point about how the clubs are being managed. However an interesting example occurred in the 1990s of the possible limitations of contractual channels.
The Court, somewhat reluctantly, found that the club had in fact drafted an exclusion clause to deal with exactly this type of situation, and the clause was held by the court to be a reasonable one. As fans become customers or consumers these types of action are sure to proliferate, and undoubtedly will look at all aspects of consumer relationships with the clubs, be it in terms of merchandising, TV channels, tickets etc. Higher Levels of Law: The New Regulation: Company Law, Competition and Intellectual property Whilst the areas of criminal law and civil law have provided the historical areas for law’s incursion into football, as football develops new areas for exploitation, so the law follows. As football has to deal with new problems, so the law is often called upon to deal with this. We have already seen the law move into areas of TV Rights and Club Ownership via competition law, and intellectual property via the areas of trademarks and image rights as clubs and players begin to see a wider commercial value outside of the playing field itself. At the same time the whole debate over how the game should be regulated, and who should be responsible is still a live issue, notwithstanding the recommendations of the Football Task Force and the creation of the Independent Football Commission:
What is clear from the current financial state of a number of Premier League and 1st Division clubs is that perhaps the stage we are now entering revolves more around insolvency law than any other. * * *
Copyright © Steve Greenfield & Guy Osborn 2003.
Bibliography and Further Reading Criminal Injuries Compensation Board, (1987) Annual Report CMD265 HMSO London. Gardiner, S. (1993) Not playing the game - is it a crime? Solicitors Journal 628 Grayson, E. (1994) Sport and the Law Butterworths: London Grayson, E. (2001) Sport and the Law Butterworths: London Greenfield, S. and Osborn, G eds (2000) Law and Sport in Contemporary Society Frank Cass: London Greenfield, S. and Osborn, G (2001) Regulating Football Pluto Press: London James, M. (2002) The trouble with Roy Keane Entertainment Law Volume 1, Number 3, 72 Keane, R. (with Eamon Dunphy) (2002) The Autobiography, Michael Joseph, London. Law Commission, (1993), Criminal law. Consent and offences against the person. Consultation paper no 134 HMSO London Moore, C. (1999) Assessing damages for professional footballers blighted career Sport and the LawVolume 7, Issue 2, 41 |
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