A Question of Sports law - what happens next?

In recent years there has been an upsurge in sports related litigation. With so much money at stake people are prepared to defend their investments, however, few are aware that the law affects every aspect of sport, at all levels.

You are training a party of novice scuba divers, one of them is visually impaired but does not tell you. Once in the water they cannot see your gestured instructions, experience difficulties and drown.

You are engaging in one on one coaching with a promising tennis player and whilst correcting their natural serve to one that is advised by the tennis association they are injured.

You are refereeing a Sunday league amateur rugby match and a player is injured during a scrum.

Trainers, coaches and referees throughout the UK, in all sports and at all levels, from school to premier league, are already being sued for negligence and breach of contract, even if:

• the injury is due to the recklessness/stupidity of the injured party
• they are following the advice of the sports governing body
• they are engaging in sport on a part-time/amateur basis
• the sportsperson is not injured but simply does not improve.

The Supply of Goods and Services Act 1982 section 13 implies a term into every service contract that the supplier will carry out the service with reasonable care and skill, where the supplier is acting in the course of a business.

This applies to any paid coach, whether employed privately or at a sports centre, health and fitness centre or sports club, and it is essential that both the coach and ultimately the employer ensure that contracts clearly define the rights and duties of all parties in an attempt to exclude liability.

In 1998 the tennis world witnessed the acrimonious split between Greg Rusedski and his coach in which Rusedski claimed that the coach had not made a significant improvement to his game. Whilst no action was taken, if their contract did not specifically exclude liability for non-improvement then, arguably Rusedski could have sued his coach.

Likewise all those gymnastics, golf, tennis, track and field trainers, along with their clubs, are risking potential litigation if the athlete who is paying for tuition does not improve, or even worse loses form.

Coaches, trainers and referees cannot limit their liability for injuries incurred whilst they are officiating.

Legally you must take

Previously, sportspeople, amateur or professional, have been considered to accept higher levels of risk of injury whilst training and competing. They are expected to take themselves to the limit in training time and then surpass that in competition. Courts, and competitors alike have assumed that this need to continuously stretch themselves has minimised the effect of this duty on others coaching, or competing with them.

This is changing and now many believe that if a coach misjudges an athlete’s capabilities, or fails to notice deficiencies, and an injury occurs, they should be liable.

The cost of getting it wrong at any level can be high. The Reebok adverts claim that if Messrs Giggs, Bergkamp and Cole had not used their boots they may not have succeeded "There are other boots, but then there are other careers". A nice boast for a manufacturer but with competition so intense and the rewards so high this is a day to day reality for a coach.

Alternatively injury can permanently affect lives and even lead to death. Schoolmasters have been found negligent for not only rugby tackling pupils incorrectly but also for teaching them how to tackle incorrectly. In these cases injuries have been incurred in an amateur arena with amateur coaches but this is not enough to negate their liability.

The amount of litigation is on the increase and the lengths to which a coach’s responsibility has been extended is bordering on extreme.

Last summer a scuba diving trainer taking a group of novices was found guilty of negligence when one of the party drowned. The victim was subsequently found to have suffered from an eyesight deficiency which had hindered her ability to see the gestured instructions, but she had not informed the trainer or club. The judge held that the coach was still responsible as it was his duty to discover if those in his care had limitations (physical or otherwise) that would affect their capacity to learn safely. As the trainer had not specifically asked whether anyone had suffered from a visual impairment he was found negligent.

So how can a coach and/or his employer protect themselves?

1. Employer/Coaches should identify where the divisions of responsibilities/duties lie between themselves. Ensure contracts clearly define those responsibilities and subsequent requirements.
2. Ensure that contracts for service are properly drawn up, limiting liability for athlete’s performance etc. Use a specialist solicitor.
3. Consider whether the coach is the best person for the job (teachers have been found negligent after they have injured pupils during PE, because they were physically larger than those they were playing).
4. Undertake disaster planning - anticipate every injury that could imaginably, and unimaginably, occur whilst training and competing.
5. Provide a checklist of requirements with which that athlete must conform prior to participating to ensure that they are physically and mentally capable.
6. Follow the sports governing body guidelines and make sure you are up to date with changing techniques and requirements.
7. Check that your insurance is adequate.

Consider whether you should advise the sportsperson to take out personal insurance (now common with skiing holidays).

Be prepared, limit all risks and play safe.

For further information please contact Rob Elvin, Tel: +44 161 830 5000.

This article was first published in the Autumn 1999 issue of Hammond Suddards' Sports Newsletter.

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.