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Banging Heads Together 3: One rule for one, another for everybody else

Our previous two articles have touched on the dangers that CTE poses and where the liability could lie with clubs and governing bodies. This final instalment will question where liability on a player vs. player basis could come into play.

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If we compare two incidents (one from the professional ranks and one from the amateur) with the same facts the outcomes are very different. Gloucester prop Nick Wood, just 73 seconds into the recent game against Saracens, stamped twice onto the face of Jacques Burger. Wood received a red card and a likely ban of 9 weeks from the RFU’s disciplinary panel. Rhys Garfield playing in the amateur Welsh leagues was jailed for 15 months for stamping on an opponent’s head back in 2006.

Just last year an amateur rugby player Jack Weston was jailed for six months after he punched an opponent so hard during an on-pitch row over a tackle that he broke his jaw.   Contrast these facts with Leicester’s Manu Tuilagi who, a season earlier, violently assaulted former Northampton Saints winger Chris Ashton with a flurry of punches and was subsequently banned from all competitions for 5 weeks.

The RFU’s disciplinary officer Judge Jeff Blackett said at the time: “This sort of incident is very damaging to the image of the game and there is no place for this type of offending on the rugby pitch. Had it occurred in the high street an offender would have been prosecuted in the criminal courts.”

This statement raises the question as to why so few players have been prosecuted outside the laws governing their particular sport. The 44 days spent by Duncan Ferguson in Barlinnie prison in 1995 for headbutting Raith Rovers defender Jock McStay is one of the very few instances where an on-field incident has resulted in a criminal conviction.

Criminal proceedings are generally reserved for the most serious situations as discussed above. The law is more commonly involved in civil claims where an action is brought by one player against another for negligence. In 2009 Everton striker Victor Anichebe settled out of court for a six-figure settlement in damages after instigating legal action over a tackle from Kevin Nolan that left Anichebe unable to play for 11 months.

The latin phrase Volenti non fit injuria means ‘no wrong is done who consents’. Therefore if you consent to the possibility of injury and you are injured then you cannot claim you have been wronged. This is a complete defence for a claim for negligence. So should the laws of the land be left on the touchline? Should consideration be given to the importance of protecting players from serious injury balanced against the reasonableness of finding another player liable? The case law surrounding these instances tells us that violent acts will trump an injured party’s consent. Where there is difficulty in application is across the spectrum of sports. What players will consent to in boxing, cage fighting and rugby is far greater than what players will consent to when they take to the field for a football match or game of cricket.

If you have any issues relating to injuries suffered whilst playing sport which fall outside the laws of the game then why not get in contact with our specialists, who can give you the very best advice available.

Andy Boyde – Sports Consultant

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