17 June 2002
Just days before the big World Cup kick-off, former Sheffield Wednesday player Ian Nolan was suing Tottenham Hotspur and their former defender Justin Edinburgh for compensation, claiming that an injury caused by Edinburgh's tackle during a 1998 league match damaged his career and limited his earning power.
Recent research shows that professional footballers lose an average of 24 days a year through injury, costing English clubs more than £40m each season.
Injuries among amateur players are equally expensive, with NHS treatments for injured sports players costing around £500m annually.
But for players of Michael Owen's skill, for example, each leg is worth millions of pounds - to him, to his club and to his sponsors. So if he was injured in a bad tackle during the World Cup and his career came to a premature end, how would he recoup current and future loss of revenue?
Causation, liability and jurisdiction
First, there is the issue of causation: How did the tackle cause injury and was it intended to injure? There is then the liability issue: Should the player causing the damage, or the team for which he plays, compensate the injured player?
Injuries occurring in foreign jurisdictions bring further complications: What happens if an English forward is injured by a German defender in Japan? Where could the case be heard? Usually jurisdiction would lie in Japan where the incident happened. Although it could be in the domicile of the defendant - so, if the German culprit lived in France because he played for Marseilles, he could potentially be sued in France. But as his national team, for which he was playing when he committed the foul, is based in Germany, the action could also be pursued there.
These general principles concerning forum apply in many countries, but not all. Therefore, when selecting the forum of choice, the 'local' law requires careful examination.
The rules applied by the country of choice to applicable law are a further complication. Some countries would apply Japanese law to liability but local law to the assessment of damages.
Negligence or a criminal injury?
A bad tackle may be negligent or, in extreme cases, a criminal injury.
If the opposing player could be proven to have intended to injure or was reckless to the possibility of that outcome, there may be criminal liability. This is a question for the prosecuting authority of the country where the foul was committed.
Negligence would apply to a tackle that is executed to a standard below that which a player might reasonably expect, and which unintentionally results in injury. The team would also be liable, vicariously, for the negligence of the employee (the player in question). This may not be so if there was intent to injure, which may also negate the insurance teams that carry against this risk.
The injured player can seek compensation from his opponent or his opponent's team or from a criminal injuries compensation scheme.
If the player was British and he was to claim via a criminal injuries scheme, then - if reciprocal agreements exist with the UK - the claim could be brought before the Criminal Injuries Compensation Authority (CICA), as would be the case for any member of the public injured abroad in similar circumstances.
In a civil claim, his club, which pays his wages, or his country - which may have agreed to reimburse his club the wages payable during any period of rehabilitation - may wish to recover the outlay.
In any such claim, what evidence would be required?
A police prosecution would not be required for a successful criminal claim, nor would the tackle have to lead to the defender being sent off for a civil claim, although both would assist.
Video evidence of a tackle that took a player out of the World Cup would back up the claim, and the expert views of players and coaches, who can discern the difference between a badly executed tackle and one that was properly executed, would be crucial.
For a criminal injury claim to succeed it would need to be proven that the tackle was intended to injure the player.
Amateur players insure against injury
Many clubs/associations have a separate regime of insurance. Among English amateur organisations, both Kent and Middlesex county football associations, for example, have established compulsory insurance schemes for their clubs. Personal injury insurance premiums of around £40 a season for an adult club and £20 for a youth club are in place.
In the event of permanent disablement the policies would typically pay between £2,000 and £20,000, with players also receiving between £10 and £100 a week if they were unable to work, as well as help with specialist medical care.
Obviously far higher levels of compensation would be awarded should a career-ending tackle take place in this year's Fifa World Cup.
But whatever the outcome of the final in Yokohama, the players can rest assured that their personal injury lawyers will be able to recover lost income through one of a myriad routes.
Andrew Tucker is a partner at Irwin Mitchell
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