IMPLIED SPORTING CONSENT OR CRIMINAL ASSAULT?

There is an increasing tendency to use criminal law to resolve issues of violent contact that occur in sports, predominantly in contact-sports. Various criminal assaults “committed during sporting competitions are laid down in common law”. However, when and at what point is it appropriate to apply criminal liability to the perpetrator/player for an injury-causing act during the game? The answer heavily relies on the implied sporting consent principle. Therefore, through relevant sporting caselaw, it will be critically examined whether a participant’s injury-causing act is an unlawful assault or a ‘legitimate play’ that was consented to relying heavily on the paramount case of Barnes.

As a ‘general rule,’ nobody can consent to the infliction of actual bodily harm(ABH) or greater, however, it is established that contact-sport is treated differently since participants agree to battery being inflicted on them(Brown). This sporting-exemption is justified, as it promotes the participant’s “social, physical and cultural well-being,” and since many sports would be unable to function. In Bradshaw, Bramwell LJ acknowledged that contacts within the “rules and practices” of the game could be consented to. A century later in Billinghurst, it was exemplified that players consent in law to the application of force, that “could reasonably be expected to occur during a game.” However, Barnes provided clarification as to whether an injury-causing act could occur during the course of “legitimate sport.” Lord Woolf held that playing sport is a lawful activity, since organised sports have sophisticated disciplinary regimes and suggested injurers should obtain damages through a civil action, favouring a hands-off approach. Therefore, only where the contact is “sufficiently grave” should it be criminally prosecuted.

Correspondingly, Lord Woolf observed that consent is not absolute and is limited by the degree and probability of serious harm being inflicted, thus, players do not consent to deliberate assaults like punching or kicking. However, ‘legitimate sport’ could encompass foul play that although it could result in sending-off and/or banning the player, that particular act might not be considered criminal. Hence, in light of the above, contact outside the rules is anticipated in the heat of competition and can be consented to by the players. The threshold is objectively examined, implementing a non-exhaustive list of criteria such as “the type of sport, its level, the nature of the act, the degree of force used, the extent of the risk of injury, and the player's mens rea,” to determine what constitutes “playing culture.”

Τhe general rule is that contact-sport is treated differently, such as in a competitive professional league football match, where challenges are an integral, normal and expected part of the game. In Blissett, the victim(injured player) was unable to play football again after the challenge, yet the challenge and/or contact was not considered sufficiently grave to criminally prosecute the player, since it was calculated as a regular challenge football spectators “would expect to see 50 times per game”. Although James argued that injury-inflicting acts cannot become lawful simply through repetition, if the nature of the act does not appear to be excessive, deliberate and a vigorous foul challenge and if it is not beyond the interpersonal contact expected as in Kerr, possible injury-inflicting acts can be considered as fair and reasonable challenges within the games’ rules and practices and a legitimate play within the ‘playing culture’, that accidentally resulted to injury, as discussed in Bradshaw and as illustrated when Ben Thatcher' was not criminally prosecuted after elbowing viciously Portsmouth's player Pedro Mendes.

Therefore and according to Barnes, legitimate sport “encompasses foul play” and even though it results in a player being sent-off and/or being banned, the contact and/or injury-causing act might not be deemed criminal, allowing “consent to behaviour and contact outside the game rules.” This was illustrated in Evans where stamping on the victim’s head was considered normal play and in Chester where the defendant was acquitted for committing a hard but professional foul. Such challenges are likely to be expected in professional level playing, especially when the opposition player is ready to score, since arguably the defenders’ instinctive reaction and intention is to prevent the opponent from scoring rather than contacting them with aggression to injure them. What appears to be problematic is “reconciling the participant’s spontaneous actions during the game to the mens rea of criminal law.” For instance, by tripping a player during the game, the degree of force used might not be considered excessive nor deliberately and/or intentionally harder than what is deemed acceptable, and simultaneously be considered as a legitimate play within the playing culture. However, in Chapman the player was prosecuted for performing a high-two-footed lunge challenge that was considered as a criminal contact and an unlawful assault with intention to cause harm and injure the victim.

Nonetheless, deliberate and intentional off-the-ball acts, not within the “rules and practices” of the game, like head-butting as in Ferguson, elbowing as in Cotterill, or biting as in Johnson, frequently results in custodial sentences and are not considered instinctive reactions within the heat of the moment and the playing culture. Ultimately, sports is not a “licence for thuggery” or “enduring gratuitous violence.” Thus, such criminal behaviours and contact constitute sufficiently grave situations where players do not consent and criminal law should intervene.

Yet, considering Luis Suarez’s biting incidents, Ben Thatcher's elbowing towards Portsmouth's player Pedro Mendes that were not prosecuted as aforementioned, and recent vicious intentional, deliberate and persistent tackles and foul plays to Real Madrid's Brazilian young football star Vinicius Junior by his opponents in almost every game, the boundaries of criminality in contact sports are increasingly difficult to ascertain and injury-cusing act during the game remains a controversial area as to whether implied-sporting consent adsorb and/or captivate such acts.

While Grayson’s philosophy is that deliberate and intentional foul play resulting in injury, is actionable, one could argue relying on relevant caselaw that in the heat of competition and within the playing culture, foul play challenge resulting in injury could be a fair challenge where the injury is an accidental and unfortunate result.

Considering all circumstances and the relevant caselaw, although legitimate sport encompass foul play and challenges that might sometimes go beyond the expected interpersonal contact and/or are injury-causing acts, such challenges might be considered as legitimate play(by adopting a case-by-case rule and relying on similar and/or identical facts from relevant caselaw) within the playing culture. Perhaps, a ban enforced by the sport’s disciplinary tribunal in such circumstances, might be the most suitable recourse as illustrated in Barton. Although Criminal law should be shy from intervening in every challenge in order to ensure that common-occurring foul play is acceptable within the playing culture, as discussed in Pitcher, the illusion that violent, deliberate and intentional foul-play and/or injury-causing acts cannot result in prosecution must stop, since criminal law goes beyond the touchline.

BIBLIOGRAPHY

Primary sources

Table of cases:

·      R v Barnes [2004] EWCA Crim 3246 [1-2] [5] [12-16]

·      R v Bradsahaw [1878] 14 Cox CC 83 p85

·      R v Billinghurst [1978] Crim LR 553

·      R v Blissett [1992] Independent, 4 December

·      R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993) p245, 266

·      R. v Bollom (Stephen Clayton), [2004] 2 Cr. App. R. 6 (2003) p60-61

·      R v Bowyer [2001] EWCA Crim 1853 p6 of the transcript

·     R. v Cotterill (James Michael), [2007] 2 Cr. App. R. (S.) 64 (2007) p391

·      R v Chester, (Unreported), Crown Court, (York), 16 August 2010)

·      R v Chapman (unreported Warwick Crown Court, 3 March 2010

·      Court of Arbitration for Sport, Luis Suárez, FC Barcelona & Uruguayan Football Association v. FIFA, CAS 2014/A/3665/3666/3667

·      R. v Donovan (John George), [1934] 2 K.B. 498 (1934) p507-509

·      Engel v Netherlands (1976) 1 E.H.R.R. 29, 81-83

·      R v Evans (Unreported), Crown Court, (Newcastle), 15 June 2010

·      FA v Thatcher Independent Disciplinary Commission, 12 September 2006

·      Ferguson (Duncan) v Normand, 1995 S.C.C.R. 770 (1995) p770

·      R. v Field (Brian John), [2003] 1 W.L.R. 882 (2002) p891

·      Garfield [2008] EWCA Crim 130; [2008] 2 Cr. App. R.(S.) 62 [7], Walker J.

·      R. v Golding (David): transmission of diseases - grievous bodily harm - reckless infection of sexual partner with genital herpes Court of Appeal (Criminal Division): Treacy L.J., Bean J. and Judge Lakin: May 8, 2014; [2014] EWCA Crim 889 p687-688

·      Hywel Trewyn, ‘Wrexham footballer jailed for leg-breaking revenge tackle’, dailypost.co.uk,19 Aug 2016

·      Kamara, The Times, April 15, 1988

·      R v Kerr (unreported, Minshull Street Crown Court (Manchester)), 30 September 2015

·      R. v Latimer, (1886) 17 Q.B.D. 359 (1886) p361

·      R. v Roberts (Kenneth Joseph), (1972) 56 Cr. App. R. 95 (1971) p100

·      R. v Savage (Susan), [1992] 1 A.C. 699 (1991) p721

·      The Football Association v Barton 23 May 2012

·      Welch v UK 20 E.H.R.R. 247 262-63

·      Wemyss v Hopkins (1875) LR 10 QB 378, per Blackburn J p381

·      R. v Wiggins (Liam Roy), [2014] 2 Cr. App. R. (S.) 72 (2014) p567

Table of legislation:

·      Offence Against the Person Act 1861 s.47, s.20, s.18

Secondary sources

Books:

·      Mark James ‘Sports Law’ 3rd edition, Published by Palgrave Sports Master 2017 p80-81, 124-132, 137-138, 234, 240, 243-247

·      John Child and David Ormerod, Smith, Hogan, and Ormerod’s ‘Essentials of Criminal Law’ (2nd Edition, Published 06 April 2017) p95,97-98, 231-232, 234

Journal articles:

·      Ben Livings ‘"Legitimate sport" or criminal assault? What are the roles of the rules and the rulemakers in determining criminal liability for violence on the sports field?’ J. Crim. L. 2006, 70(6), 495-508. p495-496, 498-499

·      Ben Livings ‘Sports violence, "concurrent jurisdiction" and the decision to bring a criminal prosecution’ Crim. L.R. 2018, 6, 430-449 p432

·      Cooper & James, ‘Entertainment – the Painful Process of Rethinking Consent’ [2012] Criminal Law Review 188 p4, 8-9

·      Grayson, E., and Bond, C., (1993), ‘Making Foul Play a crime’ [1993] Solicitors Journal 693. p694

·      Jack Anderson ‘No licence for thuggery: violence, sport and the criminal law’ Crim. L.R. 2008, 10, 751-763 p751, 753, 755, 756, 760, 763, 762

·      Jack Anderson ‘New Criminal Law Review: An International and Interdisciplinary Journal’ , Vol. 17, No. 1 (Winter 2014), pp. 55-75 p71

·      J.H. Beale, "Consent and the Criminal Law"(1895) 8 Harvard Law Review 317, 323 p325

·      Mark James and Simon Gardiner ‘Touchlines and guidelines: the Lord Advocate's response to sportsfield violence’ Crim. L.R. 1997, Jan, 41-45 p41, 44

·      N. Harris, "CPS Plans Crackdown On Player Violence', Independent (London 4 June 2005) p67

·      Simon Gardiner, Alexandra Felix ‘Juridification of the Football Field: Strategies for Giving Law the Elbow’ 5 Marq. Sports L. J. 189 (1995) p202

·      S. Hoffman and S. MacDonald, ‘Should ASBOs be civilized?’ [2010] Crim L.R. 457

Online Journals:

·      Gavin Brogan, ‘The role and extend of criminal sanctions in sport’ Lawinsport 15, July 2019 <https://www.lawinsport.com/topics/item/the-role-and-extent-of-criminal-sanctions-in-sport#references>

·      James, ‘The trouble with Roy Keane’ (2002) 1(3) Entertainment & Sports Law Journal online p73, 77-80

·      Pendlebury, ‘The Regulation of on-the-ball Offences: Challenges in Court’ (2012) 10(1):3 Entertainment & Sports Law Journal online para [4] [7] [15] [20] [24]

·      Pendlebury, ‘Perceptions of Playing Culture in Sport: The Problem of Diverse Opinion in the Light of Barnes’ (2006) 4(2) Entertainment & Sports Law Journal online para. [3] [25-28]

Author - Georgios Mouzouris | Advocate