Vicarious liability in sport: Analysing the Fulham Football Club v Jones Case

Sports organisations are expected to face more claims of civil liability for serious injuries in professional sports matches.

Vicarious liability is a legal principle that imposes strict responsibility on one party for the wrongful actions or infringements committed by another.

The principle primarily applies to employment relationships, where an employer is liable for the negligent acts of an employee in the course of their employment. It is generally not thought to be applicable to the world of sports, where the wide-ranging understanding is that sports clubs cannot be held vicariously liable for the tortious behaviour of their athletes.

However, the position is nuanced and demands further reflection when pursuing or defending such claims.

With the latest professional football season recently commencing, it is important to revisit the case of Fulham Football Club v Jones [2022] EWHC 1108 (QB), in which the High Court provided useful guidance regarding the legal principles applied in determining civil liability for severe injuries that occur during professional sports matches.

Background

Jordan Jones brought a claim against Fulham Football Club following a tackle made by Jayden Harris during an under-18 football match between Fulham and Swansea City Football Club.

The tackle involved Mr Harris sliding in from the side and resulted in Mr Jones sustaining an ankle injury.

Despite the referee witnessing the tackle, no foul was awarded and play continued. Mr Jones subsequently claimed that the tackle, which was captured on video, resulted in a career-ending injury and alleged assault and/or negligence.

He brought a claim against Fulham, asserting vicarious liability for Mr Harris' actions as his employer.

The judge in the first instance determined that Mr Harris had no intention to harm and dismissed the assault claim.

However, the judge also concluded that the tackle was negligent due to Mr Harris' serious misjudgement, surpassing the typical misjudgements or lack of care inherent in the game.

The judge considered Mr Harris' size and his uncertainty about the outcome of the challenge as important factors.

Appeal

Fulham appealed the decision, primarily arguing that the judge had wrongly lowered the legal standard for establishing civil liability in professional football matches.

Fulham advanced four grounds of appeal before the High Court, all of which were successful:

1. The judge had failed to apply the correct test for civil liability for personal injury claims in a professional sporting context. The appellant judge referred to the earlier UK decision of Caldwell v Maguire & Fitzgerald [2001] EWCA CIV 1054, which held that civil liability for personal injury claims in a professional sporting context requires more than a finding that the rules of the game have been breached, and this will only be established in exceptional cases. By aligning "serious foul play" as defined in the laws of the game with actionable negligence, the judge had "wrongly reduced the ambit of the inquiry required in order to answer the question of whether, in all the circumstances, Mr Harris's tackle was not only a breach of the Rules of Game but negligent".
2. The judge had failed to take into account the context and realities of the playing culture of professional football, which is a fast-paced and physical game. By analysing the tackle in a vacuum and applying hindsight, the original judgment had purported to set a standard for recklessness or quasi-reckless behaviour in professional football, far lower than what is needed to establish liability.
3. The judgment had erred in law in affording no weight to the fact that the referee did not award a foul, and failing to have any regard to the decisions of the officials who are tasked with administering the rules of the game. Although not definitive, the fact that an official decides not to take action, as occurred here, must be engaged with by the Court when determining whether actionable negligence has occurred.
4. The judge had failed to give reasons for rejecting Fulham's expert evidence.

Conclusion

The appeal decision provides significant guidance on claims arising from severe sports injuries:

1. The standard for establishing civil liability in sports injuries is significantly higher than for mere rule breaches in the game. The first instance judge equated "serious foul play" in the Rules of Association Football with actionable negligence, thus improperly narrowing the scope of the inquiry into whether Mr Harris' tackle was negligent.
2. Uncertainty about the potential harm caused by a tackle is insufficient to establish negligence in sports injury cases. This would set an unacceptably low standard for recklessness or quasi-recklessness in professional football.
3. When assessing negligence claims in sports injury cases, the Court must consider the context and realities of the specific sport. Professional football is a fast-paced and highly competitive contact sport. The initial judge erred by not taking this context into account.
4. The decisions of professionally qualified referees present during the game must be considered by the Court, although they are not determinative. Courts should take such decisions into account when assessing whether actionable negligence has occurred, which the initial judge failed to do.
5. The first instance judge's decision to favour Mr Jones' expert evidence over Fulham's, without providing any explanation, was legally flawed. Courts must rely on all expert evidence and cannot dismiss it merely because it contradicts the independent conclusion of the judge.

This case serves as a helpful reminder that establishing civil liability for serious injuries in professional sports matches is not straightforward.

With an anticipated rise in such claims, parties should carefully consider this decision when pursuing or defending claims involving allegations of vicarious liability.

This article was authored by Andrea Carrera, Solicitor Apprentice, and Richard Branson, Senior Associate in the Employment Team. If you have any queries or would like any further assistance on this or other sports law matters, please contact the Fieldfisher Sport practice.