[Author: Swara Popat, a Student of Law at Jindal Global Law School]
Although sports have been an inherent part of human life, its relationship with the law is relatively nascent. In the last few decades, sport has gone from a field unhindered by law to one where almost any action can potentially cause litigation. With the primary purpose of providing compensation for injuries sustained by a person due to the conduct of another, tort law comes to aid in this area. Potential claims exist for almost all stakeholders in and around the sporting arena. However, unlike under normal circumstances where damage and injuries are a potential cause of conflict, injuries are known to be an inherent part of sports. One must consider that sports are a dynamic field with different rules and reasonable practices across multiple sports, making it difficult to differentiate between an injury typical to the sport and one that must receive compensation. This article covers the torts of negligence, assault, battery and recklessness with their role in sports, tracing important cases and jurisdictions along with the topical approach worldwide.
UNINTENTIONAL TORTS – NEGLIGENCE:
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. The elements required to establish negligence are also rather clear and self-explanatory, being,
- the existence of a duty of care owed by one party to another;
- a breach of said duty to care, and
- damage caused due to the breach of the established duty.
Negligence is applied to cases of sports in a way rather similar to that of regular tort cases, following the ‘neighbourhood test’ established by Lord Atkins in Donoghue v. Stevenson. Since a certain amount of breach of ordinary and reasonable conduct is considered to be an inherent part of sports, the questions that arise are:
- Who owes a duty of care and to whom?
- What amount of breach of said duty is to be considered a cause for a claim?
The first English Case involving participator violence was Condon v Basi, wherein Lord Donaldson made the following statement.
“It is said that there is no authority as to what is the standard of care which covers the conduct of players in competitive sports generally and, above all, in a competitive sport whose rules and general background contemplate that there will be physical contact between the players, but that appears to be the position.”
In the same case, it was established that all players in a sporting contest owe a duty of care to all other participants to take reasonable care not to cause harm. The existence of a duty of care between players in a game, which initially stood questioned, was now established.
The question regarding the degree of breach required to establish negligence remains a contested issue. In contact sports like football, hockey etc., a certain amount of breach is expected as a part of the game, while in other sports like badminton or swimming, the scope for breach is comparatively much less. The detection of a wrongful action becomes difficult. The general advancement of litigation has led to various conceptions come into action like adherence to the rules of the game or coherence to the normal expectations of players playing the sport. However, it remains a rather ambiguous issue.
Claims for negligence that arise in sports are comparatively harder to prove, and the claimant often faces the main problem of having to prove negligence in the defendant’s conduct. Said claims often occur in various capacities, like in Woolridge v. Summer where negligence was towards the spectators, or in Bolton v. Stone where the negligence claim was made by a person outside the boundaries of the playing field altogether. In most of these cases, the courts have concluded that there was no negligence. There have been multiple cases where serious injuries have gone uncompensated due to the defences available in sports and tort law.
INTENTIONAL TORTS – ASSAULT AND BATTERY
Another basis on which a claim can be made in sports is that of intentional assault or battery. Whenever an athlete issues a claim based on intentional torts, the burden to prove becomes harder because proving the intent of a person is inherently a difficult task and cannot be done in its entirety, intent can only be inferred. However, in sports, the intent is insanely hard to prove since physical contact and rough contact are accepted parts of sports to the point that players of some sports consider fighting, an act that contributes to battery, an essential part of their sport. Many sports-related injuries at times are truly the result of contact inherent to the sport rather than intentional hostile contact causing injury. Moreover, at times courts have been reluctant to conclude the defendant intended to cause harm. Adequate defences are also available that make the task of proving battery and assault too difficult to succeed in. The first and most affirmative defence available here is that of volenti non fit injuria, where one can claim that the claimant had consented to the injury that he faced by consensually participating in the sport. For example, in 1997, in a lawsuit between Mike Tyson and Evan Hollifield, wherein Tyson had bit the left ear of Hollifield in a match, the most notable defence used by Tyson was that of volenti non fit injuria. Sports is a physically trying activity, and consent to participate can automatically be considered consent for any action incident to the game. The role of these torts in sports is rather important, but the availability of multiple defences makes it harder for athletes to sustain their claims.
In simple terms, the tort of recklessness is committed when a person knew or ought to have known that their action would likely cause serious harm and injury but was indifferent to it, conducting the action regardless of the knowledge. In a spectrum starting from negligence where the tort is unintentional and causes harm to battery where the tort is intentional and causes damage, recklessness can be said to be the middle ground where there is knowledge of the potential harm and serious harm being caused. Many researchers believe that recklessness is a better standard to establish fault in professional sports. At the same time, negligence is better suited for amateur level sports since, on the professional level, players are experienced enough and play games at higher risk levels with more knowledge.
Although the basic approach towards torts in sport has been covered above, jurisdiction regarding the same is continuously developing. The way in which claims for injuries incurred in sports are judged is different in the world’s various countries. In the nations that typically follow common law like Great Britain, cases of torts in sports are a private matter and harder to receive claims for. However, in other European countries where the state covers almost all injuries via state medical care, the claims are usually for additional compensation against the state or insurance companies. In certain cases, judges are also reluctant at times to hold athletes liable since they believe it might hinder the participation of people in the activity or might harm the general sentiment that surrounds the sport.
However, what becomes an issue of concern is the magnitude of injuries incurred during sports and the fact that the majority go uncompensated despite their seriousness. In Caldwell, serious injuries had claims dismissed since the sport was highly competitive and one where risk was high. There is the wrongful death of athletes, spectators, or severe injuries that cause permanent impairment for the individual in multiple cases. Due to the various safeguards available to defendants in sports torts cases, claims are dismissed, and the claimants receive no compensation. In a court of law where justice is the institution’s foremost motive, to what extent is this fair? Though an ambiguous and multi-faceted field, sports requires harmonious litigation where there are adequate provisions for the claimant to recover damages. Efforts need to be made to make the lines clearer and definite to address claims practically. Considerations of a hindrance to the spirit of the game, though necessary, should not warrant misconduct and harmful behaviour. On multiple occasions, for instance in Nabozny, wherein the court found that “some of the restraints of civilization must accompany every athlete onto the playing field.” It is pertinent to consider the civil and common law approaches towards torts in sports and devise a system that allows optimal situations for athletes and various other stakeholders to partake in the activity with the knowledge that adequate safeguards are available to them.
*For any query, feedback or discussion, the Author can be contacted at [firstname.lastname@example.org]
PREFERRED CITATION: Swara Popat, Tortious Interventions in Sports, SLPRR, <https://sportslawandpolicyreviewreporter.com/?p=1508> June 1, 2021.
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