When is a tackle a negligent act?

Insight

Published

13 July 2022

The High Court recently handed down a landmark ruling that will potentially set the guidelines for when liability can arise in contact sport for years to come.

In December 2016, during a youth match between Fulham FC and Swansea City, J (a player for Swansea) was entering the Fulham half with the ball at his feet when he was tackled by H (a Fulham player). H won the ball, but in doing so, made contact with J’s ankle. The referee deemed the tackle to be within the rules and play continued, but J suffered an injury which, regrettably, ended his career.

A few years later, J brought a civil claim for compensation against Fulham FC on the grounds that, as a minimum, H had been negligent when he had tackled him. At the first hearing in 2021, the judge ruled in favour of J. 

During the match the referee had not awarded a foul for H’s challenge on J, let alone deemed it sufficient to warrant a booking, yet the trial judge had ruled the tackle as a breach of H’s “duty to take the reasonable care for another player’s safety that was appropriate in all the circumstances of a professional game of football”.

This decision was overturned on 18th May on appeal, in a significant ruling that clarified some important principles as to when injury on the pitch can translate to civil liability in court.

In making his ruling that the tackle was a breach of H’s duty of care to J, the judge in the first hearing described the challenge as “serous and dangerous foul play”, despite the referee not awarding a foul at the time. On appeal, the Hon Mr Justice Lane judged that the rules of the game must be taken into consideration and weight should be given to how a challenge is viewed by the official at the time.

He commented that even if the challenge had breached the laws of the game, that did not by definition make the action negligent. Negligence in contact sport needs to be measured at a “materially higher standard” than in other personal injury claims.

Football is a fast, physical sport and players are continually required to make split-second decisions. It is wholly unfair to then review those decisions frame by frame in comfort and hold players to a standard guided by hindsight, without taking into consideration the “the realities of the playing culture of professional football, which is a fast-paced, competitive game necessarily involving physical contact”, where a player can make an imperfect challenge, but with no intent to cause injury.

Had the original ruling been allowed to stand, players would have faced a situation where they should only attempt a tackle when they could be certain of not causing injury. Clearly, that would not be possible in a fast moving game.

The successful Defendant/Appellant was represented by Matthew Harpin of Browne Jacobson Solicitors who instructed Luka Krsljanin of Blackstone Chambers to represent the Defendant at trial and on the Appeal.  Matthew Harpin has said:

“I am delighted to have represented Fulham FC in this significant appeal win where the Judge sided with all four of my client’s grounds of appeal. The decision is of real importance for all sports law practitioners.  It will ensure that decisions in future similar cases take account of the high bar for finding civil liability in the sports context. This decision ought to also ensure that civil liability is only found in exceptional cases1.

Hopefully, this ruling will allow competitive sport to continue unrestrained by concerns that errors on the pitch could lead directly to court.

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1  (Fulham FC v Jones [2022] EWHC 1108 (QB))