The increased competitiveness brought about by unprecedented financial reward, the television, press and celebrity culture surrounding sport, makes Orwell’s statement truer today than at any other time in history.
The Crown Prosecution Service (CPS) recently announced, at a Crime in Sport conference, that it aims to reject the perception that violence in sport is tolerated or beyond the scope of criminal sanction. The CPS is seemingly determined to flex its muscles, upsetting the increasingly delicate relationship between governing bodies and the legal system. The establishment of a framework of rules for police and prosecution intervention in sport in England and Wales is likely to be viewed as a slight by governing bodies and with derision by the sporting participants and tax-paying spectators, the ‘witnesses of violence’, who may consider that the already overstretched public purse should not be further depleted by the CPS meddling in sport.
Several recent acts of on-field violence in recent high-profile football and rugby games are the subject of police investigations. It is only a matter of time before a high-profile player suffers the same fate as Duncan Ferguson, who was sentenced to a three-month prison term for an on-field head-butt while playing for Rangers FC.
The high watermark of R v Brown, which showed surprising tolerance of a view that consenting sporting participants were, to some degree, able, if they so wished, to ‘have a go’ at each other without being subjected to the criminal courts, has been whittled away in the 14 years which have passed since the case.
Increasing numbers of players are commencing civil claims against clubs and players for injuries sustained from acts which go beyond the rules of the game. The Accident Compensation Corporation of
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Trial by video
The media-driven, frenzied focus on conduct that spills into violence may not only lead to a spate of stocking-filler DVDs with titles such as 101 Sporting Bust-ups, but is sure to result in increased levels of criminal and civil litigation. A dirty player can no longer hide from the truth of a camera lens. Incidents initially missed by TV cameras are now made notorious in YouTube clips and spectator footage, as Lewis Hamilton has just found.
Opinions on the acceptability of excessive force in sport resulting in injury by men (or women) behaving badly are as varied as the acts of violence committed. The vigilante, or ‘what goes around comes around’ attitude, best expresses the traditional sport fan’s view. Unreconstructed fans think that the law courts should keep their noses out of sport. Such fans would argue that in-house disciplinary procedures and players settling scores ‘like men’, is the correct approach.
Most would accept that the courts should rule on cowardly acts of violence which result in serious injury, but should otherwise allow governing bodies to run their own ship. But are the courts, in fact, even as effective as the governing bodies?
The courts currently seem ill-equipped to deal with acts of the on-field violence which occur across all sports. Each sport has its own set of rules, which recognise the peculiarities of that specific game and the dangers competitors face. To illustrate, consider how rugby league and union, Australian rules, Irish Shinty and Hurley or even the Eton Wall Game, necessarily tolerate degrees of physical aggression that would lead to instant dismissal in soccer or cricket. The strictly logical application of criminal law would presumably outlaw activities like boxing and ultimate fighting. An analysis of incidents, which have resulted in action by the courts and governing bodies, is revealing when the worth of court intervention is considered, as is a comparison of the expertise developed by governing bodies and disciplinary panels against the haphazard approach of the courts.
When the famous indiscretions of Eric Cantona and Lee Bowyer are considered, you begin to think that the criminal system is toothless in comparison with governing bodies. Cantona’s 120 hours of community service following his prosecution for his infamous kung-fu kick at Selhurst Park may have seemed, to the person in the street, a walk in the park in comparison to the Football Association’s (FA’s) severe nine-month ban, which forced him to consider retirement and the stripping of his Manchester United captaincy. Bowyer’s fine of six weeks’ wages (£200,000) and a lengthy ban from football was far harsher than the slap on the wrist he received at the magistrates court for his attempted boxing match with Kieron Dyer. Additionally, in March 2007, David Navarro, an unused Valencia substitute, broke the nose of Inter Milan player Nicolas Burdisso in an all-out brawl after the final whistle in a Champions League match and is still serving a seven-month ban from all competition. Both clubs were fined £106,000 — far higher than the (say) £500 fine that a magistrates court might have handed down. These examples suggest that clubs and governing bodies can surprisingly deal more effectively with acts of on-field violence.
A parallel situation (although not deriving from a violence disciplinary) is the recent McLaren fine; where an act of industrial espionage which may rightly have civil or even criminal aspects, saw the governing body impose a $100m (£49m) fine — which McLaren is not even appealing. No criminal court in the
The Celtic fan banned for life for ‘striking’ AC Milan goalkeeper Nelson Dida during the 3 October Champions League game is likely to view a life-ban from football as far more severe than the possible police caution that might result from his pitch invasion.
The head of the Professional Footballers’ Association, Gordon Taylor, often argues that acts of on-pitch violence should be handled by governing bodies, as players are, in real terms, dealt with more severely than they would be by the courts.
Aussie lessons
Australian Rules Football (ARL) is at the forefront of self-regulatory steps to establish rules aimed at causing players to be more cautious in circumstances where ‘bumps’ or ‘hip-and-shoulders’ are deemed likely to cause serious injury. The governing bodies of collision sports are able to make subtle changes to their rules, which will regulate player behaviour and protect participants.
The ARL introduced the concept of a footballer’s duty of care to other players. This standard is applied to determine the weekly disciplinaries. The Australian Football League (AFL) rules also tailor the definition of negligence to the game and grade offences to the grossness or otherwise of the negligent act. If the relevant conduct constitutes a breach of the duty of care to all other players then strict sanctions will follow.
The AFL has also enforced extremely severe penalties for any deliberate violent contact to a player’s testicles. Such an act being on par with a head-butt, a ‘blind-side’ punch (a punch from behind) and acts of kicking and gouging — all of which can easily result in a season-long ban or even, in the most severe circumstances, a life-ban. Indeed, Australian Rugby League grades punches on a scale of one to five. A player who recently scored a scale four was banned for 18 games.
The fact that AFL and both codes of rugby have tailored their rules to such a degree and use specialist disciplinary panels to create uniformity must be preferable to the unpredictable and inconsistent approach, which the police and courts bring to the table.
When courts get involved in sports violence they frequently rely on governing bodies to guide their decision. Footballer Luther Blissett’s grievous bodily harm acquittal turned on evidence given by the then FA chief executive, Graham Kelly. Kelly stated that the type of challenge that occurred — jumping for the ball with an arm raised — was the type of challenge that would happen on average 50 times per match. Blissett was dealt with severely by the governing body and the acquittal suggests that the buck should have stopped there. The criminal courts must prove intent beyond reasonable doubt, which is often impossible. A governing body or arbitration panel can apply common sense and perhaps an ex-player’s knowledge of the sport.
Criminal courts clearly have a part to play where serious injuries result from acts which would themselves be serious breaches of criminal law, so the criminal sanctions must surely be a realistic protection for the amateur sportsperson or referee, where the majority of sporting violence offences occur. A Sunday morning thug playing for a pub side or a rugby club’s fourth team, is more likely to be restrained by the threat of the police than a local league punishment.
However, we do think (contrary to general belief) that in the context of high-earning professional sport, that the processes of governing bodies, which may include experienced ex-players, will be fairer, quicker and probably more punitive than the magistrates court. However, serious violence will always, be a crime, and therefore the player should always expect to be punished by both systems to the full extent permissible.
Simon Kamstra is a partner and head of arbitration and Pat Rich is an associate (and former professional rugby league player) at Addleshaw Goddard.
