Sport plays into the hands of legal eagles

Sport and the law: While ideally the law should facilitate the promotion of sport, we live in a litigious world and decisions in the courtroom are increasingly affecting matters on the field, writes Jack Anderson

In February of this year, a former New Zealand rugby league captain, Jarrod McCracken, successfully sued the Melbourne Storm rugby league club and two of its players for negligence over injuries sustained during a national rugby league club game in Australia. The Supreme Court of New South Wales heard that McCracken had suffered serious neck and shoulder damage as a result of a so-called spear tackle.

A spear tackle occurs when an unbalanced player is upended and dumped head first into the ground. Due to his injuries, McCracken was prevented from returning to professional rugby league and his club terminated his playing contract.

In strict legal terms, there was nothing unusual about the court's ruling. The culprits had breached their duty to take reasonable care on the sports field. Accordingly, fault attached directly to the players and vicariously to their employing club for acting in reckless disregard of McCracken's safety.

What is especially noteworthy is the court went on to state that the liability of the players in question was underlined by the fact that they had pleaded guilty at a NRL disciplinary tribunal to "effecting an illegal tackle".

The use, as evidence of guilt, by a court of the decision of a sport's internal disciplinary hearing is of interest to all sports administrators.

For instance, there is little doubt that knowledge of the McCracken case was a factor in the failure of All-Blacks Keven Mealamu and Tana Umaga to apologise (in the immediate aftermath, at least) for their tackle on Brian O'Driscoll in the first Lions Test this summer.

The All-Blacks would also have been aware that Richard Smith QC was among Clive Woodward's vast backroom team.

Violence on the field of play remained a topical issue in Irish sport during 2005. Last month, at Tullamore District Court, a Gaelic footballer pleaded guilty on an assault charge after kicking an opponent on the head during a club game. The opponent, who eventually made a full recovery, was knocked unconscious, suffered cerebral bleeding and spent 13 days at Beaumont Hospital.

The defendant paid €15,000 in compensation and received an 11-month suspended sentence. In an unusual and exemplary move, Judge John Neilan further instructed the defendant to enter a peace bond for five years during which time he is not to play football.

In dismissing the defendant's plea that he be permitted to take his place on the Offaly county panel, the judge remarked that he was wholly unimpressed with the GAA's attitude to violence in their games. Judge Neilan was particularly concerned with the levels of physicality during the International Rules series between Ireland and Australia.

It must be admitted that on any application of the ordinary law of assault, the head-high tackle inflicted upon Ireland's Philip Jordan by Australia's captain, Chris Johnson, during the second Test in that series, was criminal in nature.

In administrative terms, the GAA have significantly overhauled their internal disciplinary mechanisms. This year witnessed the introduction of the Disputes Resolution Authority (DRA), an independent arbitration body drawn from a panel of solicitors, barristers and arbitrators.

The DRA got off to an unsteady start when its initial decision on the eligibility of Kilmacud Crokes' Mark Vaughan to play in the first round of the Dublin club championship appeared to have been argued on an outdated version of the GAA rule book.

Criticism that the DRA is both excessively legalistic and overly accessible remains to the extent that the authority is viewed in some quarters as potentially undermining the GAA's more traditional disciplinary structures, such as county boards and provincial councils.

However, in mitigation, the DRA has always stated that it sees itself as a last resort, supplementing and not supplanting the GAA's existing structures.

Overall, it is suggested that the fundamental idea behind the DRA - keeping sport out of the courts - is a good one. If anything, a national sports dispute tribunal, modelled on the DRA, is badly needed for Irish sport as a whole. For the time being, the DRA remains a learning process for all concerned.

Another learning situation for the GAA is how they deal with the fact that their players are becoming increasingly aware of their commercial value.

For example, Cork's victory over Waterford in this year's Guinness All-Ireland Hurling Championship quarter-final was overshadowed by the fact that the boots of two Cork players were carrying the sponsorship mark of a rival drinks company, Corona.

In the days after the game, the sponsorship stunt attracted considerable media attention culminating in the president of the GAA, Seán Kelly, announcing that his association, along with other Irish sports organisations, were to lobby the Government to introduce legislation preventing a repeat of what he called "guerrilla marketing tactics".

Ambush marketing is where one company exploits or piggybacks on another's official sponsorship investment in a sports event.

The importance attached to protecting official sponsors, who now effectively underwrite the holding of all major sports events, is evidenced by the fact that a mere eight days after it was announced that London had secured the rights to the Summer Olympics of 2012, the Department for Culture, Media and Sport in Britain was publishing details of the London Olympics Bill. The proposed legislation sets out to prevent non-official sponsors from using distinctive Olympic-related expressions including words such as "gold", "silver", and "bronze".

The legislation even safeguards that motto of Olympic sport, "Citius, Altius, Fortius".

Staying with international sport, this month marks the 10th anniversary of the Bosman Ruling, a judgment by the European Court of Justice (ECJ) that prohibited transfer fees for out of contract players and removed the limit on the number of foreigners clubs could field.

That decision changed the face of European soccer. It is likely the ECJ will, in the new year, be faced with a matter that could have a profound impact on the nature of international football.

Charleroi in Belgium and Olympique Lyon of France, as supported by the G14, a grouping of Europe's richest football clubs, are seeking financial compensation because of injuries sustained by their players on international duty.

The claim is being made on the basis of a contended breach of EU competition law, that is, that Fifa, in forcing clubs to release their players for international duty and not providing compensation for injuries, are abusing their dominant position.

At its heart the case is about the G14 seeking a greater share of the profits made from the World Cup and the other major football tournaments. Nevertheless, it is predicted that in order to protect the very future of international football, Fifa will also be forced to subsidise a worldwide insurance policy for every player on international duty.

In addition, Fifa will have to consider scheduling issues in order to avoid the situation where, for example, the forthcoming African Nations Cup will take 30 players out of the Premiership in January and February.

Finally, and returning to Ireland, a series of reports published this year by the ESRI stressed the societal benefits of participation in sport. Ideally, the law should facilitate the promotion of sport and confine itself to egregious breaches of fundamental rights such as natural justice, bodily integrity and the right to earn a livelihood. This is, however, an increasingly litigious society.

One of the more regrettable features of the deepening relationship between sport and the law in Ireland was encapsulated recently in the Minister of State for Children Brian Lenihan's assertion that there was a "disturbing tendency" on the part ofresidents groups to oppose the construction of playgrounds for children.

More disturbing still is that if these playgrounds are ever built, the fear of litigation is such the children concerned might not even be permitted to run around them.

What next for Irish sports law, the prohibition of "jumpers for goalposts"?

Jack Anderson lectures in law at Queen's University Belfast.