International Injuries, Insurance & Compensation

source: http://img.uefa.com/MultimediaFiles/Photo/competitions/General/02/41/10/03/2411003_w1.jpg

Under Scots law, for any sports related injury legal case to succeed in an action of negligence, the victim must be able to prove three things:

• A duty of care was owed
• That duty of care was breached
• The damage suffered was caused as a direct consequence of the breach

In football, all participants owe a duty of care to one another. In order to show a breach of that duty, conduct must be reckless and fall below the standard required of a reasonably skilful and competent professional player. It must be an act that is more serious than an error of judgement. Thereafter, the injury suffered must be foreseeable. For example, it must be the type of injury that one would expect from a foul or tackle. Given that, the test for negligence in the sporting world is a high threshold to meet.

In the glamorous, big money world of football, players are considered as assets on the club’s financial books and their fitness can not only affect the club’s balance sheets but it can also cost the player personally.

Injuries that occur whilst on international duty

Tensions, regarding sporting injuries, are particularly fraught between team clubs who pay the footballer a salary and the national teams who select their players for international duty. For decades, the team clubs argued that the national governing bodies should pay compensation to the clubs for releasing players.

source: http://www.sporting-charleroi.be/images/img-smenu-clubs.jpg

One of the major turning points for those tensions came with the case of Sporting Club Royal Charleroi v FIFA. This case concerned first division Belgian club, Royal Charleroi, who alleged that FIFA should pay them compensation (1.25 million Euros) for injuries caused to star player, Abdelmajid Oulmers, whilst on international duty, for Morocco. Royal Charleroi advised FIFA, prior to the match, that Oulmers was injured and should be rested. Despite this, FIFA insisted that Oulmers play in a non-competitive friendly match between Morocco and Burkina Faso. Oulmers’ injury was aggravated and he was unable to play football again for 8 months. Sporting Charleroi alleged that their failure to win their domestic championship was as a result of the loss of Oulmers.

Charleroi’s claim was supported by the G14, an association formed by Europe’s most powerful clubs, who were dissatisfied with UEFA decisions that affected them and felt that they required representation during decision-making. The G14, at the same time brought their own claim, in the sum of 860 million Euros, in costs that had not been paid to clubs whose players had been representing their country for free whilst clubs continued to pay their wages. In January 2008, and against the backdrop of the Euros, UEFA, FIFA and the G14 negotiated a guarantee that compensation would be paid to clubs releasing their players for the Euro 2008 tournament. However, this was under the obligation that all existing actions (including the Oulmers case) would be dropped. This meant that a Court never ruled on the Oulmers case.

In light of the above, UEFA & FIFA have both set up insurance funds to compensate clubs for injuries during international tournaments, such as the World Cup and the Euros. The funds tend to cover: temporary total disablement, permanent disablement and death. Compensation for temporary injuries is capped in the region of around £40,000 per week under the notion that when it comes to the biggest players, clubs can benefit from their marketing power and reap awards from commercial pursuits such as advertising/sponsorship etc.

The introduction of the insurance funds removed the potential for much of the liability disputes that surround international tournaments. UEFA & FIFA both recognise the contribution of clubs to international tournaments as well as the huge implications for them in terms of player injuries. The insurance funds were set up to settle club and national disputes before they get off  the ground, and I’m sure Fiorentina won’t be best pleased with Mario Gomez’s hamstring injury (during this year’s Euros). If further investigations are required they will not have to pay for medical investigations and pay his entire wage package, if he requires a prolonged period to recover.

Increased European action

source: http://img.uefa.com/MultimediaFiles/Photo/competitions/General/02/41/10/03/2411003_w1.jpg

Over the decades, the migration of footballers across the world has become more and more common due to the modernisation of football. Globalisation of the sport has resulted in increased international competitions, such as the UEFA Champions League, which has given domestic clubs the opportunity to play, more and more, in foreign jurisdictions. For example, in 1967 when Celtic won the European Cup, Celtic played 5 games to become crowned ‘Champions’. To win the equivalent today, UEFA Champions League, teams must play a total of 13 games. Therefore, the potential for players to be injured in foreign jurisdictions has greatly increased. With every match played abroad, players and clubs need to be cautious of not only their own country’s legal rules but also those in foreign jurisdictions, in which they are playing.

Scotland v France - what are the differences?

source: http://img02.deviantart.net/68e8/i/2011/353/e/d/scotland_france_by_rory_the_lion-d4jmi61.png

Given the recent European championships, I have chosen to focus on the differences in the law of negligence of both Scotland and France.

The French law of negligence, in sports, is very similar to that which is applicable in Scotland. As in Scotland, French law is based on vicarious liability and focuses on the club who employs the player. Courts, in both jurisdictions, must focus on what actions are a common part of the game and give rise to certain risks, in any event, and what play is deemed to be reckless and lacking care.

However, there is one important difference under French law. Every person who is a French national or is resident in France, or is permitted to work or study in France, can claim from the state a basic level of compensation for their injuries – including those that occur whilst playing sport. Private actions will be brought only where enhanced compensation is sought. This could be for specific complex medical treatments or where there is a shortfall. Given that, the Court in France has developed a strict approach when interpreting what is an inherent risk of playing sport compared to their Scottish counterparts.

Unlike the Scottish Courts, the question is not whether a claimant should receive compensation for injuries caused by the negligence of the defender-player but instead, who should be liable for those injuries and how much should they pay – as the state is guaranteed to be there to provide some sort of compensation. The applicable law, in France, can be found in Articles 1382-4 Code Civil which states that a person, who causes damage to another, through any act whatsoever, is obliged to compensate the victim. Such acts can be intentional, through negligence conduct or by the person’s imprudence. An employer will be liable for the actions of their employees if the damage occurs during the course of their employment.

In France, actions against individual players is uncommon. All players must sign up to club insurance policies before they are allowed to participate and clubs are not allowed to enter competitions without having adequate insurance in place. Therefore, French players, who are injured will first of all look to the state compensation scheme, known as Caisse Primaire d’Assuance Maladie (CPAM). It is only where enhanced compensation is sought or where there is a shortfall in the CPAM award that an action can be brought against the defender football club.

Legal actions for sporting injuries, in France, may only be brought against a club in competitive games. Injuries that occur during non-competitive games, friendly matches or training sessions do not give rise to liability. It was for that reason that in one French case, the claimant’s action failed on the basis that despite the fact that he was injured, during the game of football, as a result of reckless play, the fact that it occurred during a non-competitive game meant that the defender club was not liable. This is in direct contrast to Scots Law.

As noted above, the French Courts also take a stricter view as to the voluntary assumption of risk in sport. For example, in one case, a claim failed despite the fact that the Court accepted that the goalkeeper deliberately threw the ball at the Pursuer’s head, with force, and as a result, he suffered a brain haemorrhage. However, the Court held that the throwing of the ball was a common risk of the game and being hit by the ball was a likely risk. This was despite the deliberateness of the goalkeeper’s actions.

In each of the above situations, it is likely that a Scottish Court would adopt the opposite decision.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.