Sports & Torts: Legal Liability in Professional Athletics
The front pages of newspapers are generally reminders of human idiocy - dishonesty, corruption, rape, kill, illicit sex and drug abuse. Therefore, many sidestep the front news and move on to the sports section to explore something more exciting. However, recently sports have had an unusual sprint on the front page owing to its own flawing. Chronicles of the Peter Korda drug doping affairs, the Olympic Games bidding disgrace, Cricket series of falls over mach fixing, payments from bookies and Ranatunga muddle, reveals the cynicism of sports.
Sport is truly a global phenomenon. As a social activity, whether in terms of participation as a recreational pastime, competitive playing at amateur levels, the elite mainly professional level or in terms of spectating, it assumes immense cultural significance. Sport accounts for 3% of world trade. If one goes by popular perceptions and natural expectations, every law ought to have its roots in, a felt need. The inadequacy or vacuum in the existing system, in meeting the challenges posed by a problem situation, leads to the need to evolve newer laws and more effective tools of implementation. The same applies to the need of effective and efficient Laws in the field of sports. Now the word sports are not only related and limited to the field but now they are imbibed in once personal life so much so that it has now become the source of bread and butter for some and the sports man as role model for another. This has now leaded to various frauds, scandals and crimes. The effective regulatory body is required to manage and handle the issues properly so that sports can still continue to be the healthy event.
There is no specific definition of sports law. Every sports federation has their own definition. According to Sport law and welfare association of India-
Sports law is one of those fields of law that is applied law in the field of sports, physical education and its related field. It is a pure law as opposed to theoretical law and is concerned with how law in general interacts with the activity known as sports.
At this time the crime and sports has raised their wings to such an extent that now the happenings of sports can not only be classified as civil or criminal but the can be easily seen various sub concept and different roots of law such as Copyrights violation, Torts, Corruption etc. The concept of torts is still wage in India. The concept borrowed from U.S. is yet to be structurized in our nation but is duly recognized by the courts of our nation. This is the branch of law governing actions for damages for injuries to certain kinds of rights. In modern sports world every now and then there are some or other kinds of injuries not only physical but also mental and not only limited to sports men but also people belonging to sports fraternity. There is hue and cry and huge violation of legal rights of the players they are mental torture, physically harassed and has to suffer from various cumbrances. The liability is imposed by the law of the nation against the wrongdoers. In order to protect their legal rights and vested interest the concept of Torts is frequently used. The concept of civil wrong has various branches that governs various day to day acts and actions of the individual whether done intentional or unintentionally.
The paper in its further chapter identifies and analysis such concepts along with the incidences that took place in the recent years in the world of sports.
Evolution And Need Of Sports Law
Whenever the topic of sports laws are taken into consideration the prudency of mind diverts to the narrow field that only covers some rules and regulation, specific guidelines relating to league and conduct of members and sports fraternity. But the face of reality states some other prospect. The sports industry is vast in scope, has millions of athletes and spectators, and generates billions of dollars annually. Broadly speaking the sports industry has huge scope encompasses sports broadcasters, playing equipment manufacturers, sports medicine care providers, businesses that sponsor athletic events or athletes, concessionaires who serve food and drink to fans at games, and others that provide sports-related goods and services. The sports law is employed in the field of sports, physical education, league and tournament and related activities. It is referred to as a complete law which governs the area where law interacts with Sports. In the wake of uniform rules and regulations required for the proper management of conduct of sports person and balance the competitive spirit among the members and other groups (such as sponsors) the generality of laws are applied to differently to sports as to other regular suits but this is inadequate and the mechanism to govern this field cannot be accepted . For example, physical contact among participating athletes is an inherent part of the game, so tort law permits some on-field contact that would otherwise infringe a person’s legal rights. However despite numerous branches of law applicable to the field of sports particularly Intellectual Property, Law of tort and Law of contracts forms the strong base and the foundation of sports law covering its wide ambit. As a part of intellectual property the registration of copyrights and trademarks for sports equipment manufacturing industries, trademark licence’s rights etc are covered. When it comes to law of contracts it governs the contract between sport’s person and sports organisation.
When the thought of “Evolution of sports laws” comes in context to India the thought of various governmental and quasi governmental bodies Like “Sports Authority of India” “National Sports Policy 2001 comes in the picture”. The Government of India and the Sports Authority of India, in association with the Indian Olympic Association and the National Sports Federations, are expected to focus specific attention on the objective of achieving excellence at the National and International levels. Various other national sports bodies comprise the provincial or state bodies of different countries. The provincial state bodies comprise the different districts or clubs. This bodies performs various Judiciary(judging) and Administrative functions which includes grant telecasting, taking punitive action against the erring players, this bodies even regulate even domestic matches and organize various other league.
The legislature has passed separate legislature governing various field of the sports. For example, in India sports information is in the Concurrent list of the Seventh Schedule (entry 33) of the Supreme law of the land ( i.e. Constitution) on which both the union and state legislatures are proficient to put together laws. There are 3 States; Rajasthan, Himachal Pradesh and Uttar Pradesh, which have enacted laws on regulating sports activity including registration, regulation and recognition of Sports Associations (Uttar Pradesh has since repealed the Act).
In India there also exists various framework and regulatory policy governing various fields of sports such as “National Sports Policy” of India. It seeks to raise the standard of Sports in India. As per the terms of National Sports Policy, 2001 the Central Government, in association with the State Government, the Olympic Association (IOA) and the National Sports Federation seeks to pursue the objectives of “Broad-basing” of Sports and “Achieving Excellence in Sports at the National and International levels”. In furtherance to that the government has also created “National sports Development funds” that mobilizes the funds of government and Non- government organization for the development of sports. Also there are various Schemes formulated and implemented by the government of India as regulatory measure for the Sports Sector, such as Scheme relating to infrastructure, Scheme relating to Events of Sports, Scheme relating to Awards, Scheme of incentive for promotion of Sports Activities, Scheme relating to talent search and training, Scheme of Dope Test and Scheme of State Sports Academy. Despite having various Rules, Regulations, Framework and Procedure existing in our nation still there is hue and cry in nation for the development of proper Laws and Legislations so as to achieve various unattainable objectives of various policies long back formulated in India and that has to still go long way. In erg of same the Government of India has also expressed its desire to enact the “National Sports Development Bill,” in the larger interest of Indian sports. It is also stated the bill will be based on the principle of good governance in the field of sports like other countries such as USA, Sri Lanka etc. and would also be redressing the problem of women harassment, age Fraud etc.
But the question of the hour is that despite having various frameworks and different bills governing so many federations India falls again to the back when it comes to attaining the objectives that has been laid down therein. Now it has to be seen soon that in the new regime of evolution of sports law in the form of National Sports Development Bill, will goes how long and how best it can contribute to increase the efficiency of sports administration in our nation. The evolution of the sports law in the country like India will definitely Answer all deeply rounded and unresolved despites that took place recently in our nation.
The calls for better Corporate Governance in the IPL in the recent past are, in reality, calls for some serious “Sports Law”. In this scenario, the operation of sporting leagues on a franchise based model, involving big investments by private enterprises, brings with it the challenge of maintaining credibility and fair play and hence here arises the need of Evolution of Sports law in India.
Various Concepts Of Torts In Relation To Field Of Sports
Often waiting in the line overnight, crowds in hundreds of thousands surge into stadiums at first light, racing for their seats. Oblivious to the elements, the fans spend the day wildly cheering for their favorite teams to victory. Sports was believed to be free from scandals and mischief. Fair game an sportsmanship were the rule of the day.
However the times have changed considerably. Recently sports have had an unusual sprint on the front page owing to its own flawing.
Many early and recent examples could be cited here. For example, in 1997 Mike Tyson bit off the left ear of Evander Hollifield during a heavyweight boxing match.
In December 1997, Latrell Sprewell of the golden state warriors choked hi coach and threatened to kill him. The warriors terminated his three year contract and called for compensation of 23.7 million dollars.
When asked to comment on such events NBA commissioner David Stern said
“A sports league does not have to accept or condone an event which is unacceptable in other segments of the society.”
It is true Participation in sports carries with it special risks. It is probably fair to say that sports activities typically, injuries incurred in athletic competition are not of tortuous origin. They occur as a result of the normal risks associated with participation in the sport.
The imposition of tort liability on a participant in a sporting event for injuries caused to fellow participant poses great deal of legal problems for the courts and the society a whole.
The problem of tort liability of co-participants requires consideration of no. of factors-
(1) The fast moving aggressive nature of man sports
(2) The need to compensate a wrongly injured victim
(3) The need to deter tortuous conduct and,
(4) Setting societal standards regarding the nature and degree of sports violence that could be acceptable in the society.
The problem is further complicated with wide array of legal theories available to the plaintiff including assault, battery, recklessness and negligence as well as equal number of defenses available such as self-defense, consent, assumption of risk, contributory fault, comparative fault etc. finally the role of the rules of the particular game are also considered in determining the liability.
• Intentional Torts- Assault And Battery
The restatement (second) of TORTS
§18. Battery states that an actor is subject to liability to another for Battery if
a. He acts intending to cause a harmful or offensive contact with the person of other or third person or imminent apprehension of such a contact, and
b. An offensive contact with the person of the other directly or indirectly results.
2. An act which is not done with the intention stated in subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
§.21 defines Assault as an actor is subject to liability to another for assault if
a. he acts intending to cause a harmful or offensive contact with a person of the other or a third person, or an imminent apprehension of such a contact, and
b. the other is thereby put in such imminent apprehension.
2. An action which is not done with the intention stated in subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk causing it, and, therefore, would be negligent or reckless if the risk threatened bodily harm.
Although assault and battery are often discussed together, they are different torts. The principle difference between them is physical contact, which is essential for a battery, while the apprehension of imminent contact is sufficient for an assault.
Intentionally striking a player from behind with a baseball bat would constitute a battery. Throwing a bat at a player intending only to frighten him, even if it misses, is an assault.
Transferred intent also is an important concept in the area of intentional torts. If a player swings a hockey stick at A intending to strike him, and unforeseeably hits B instead, he is liable to B for battery.
Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risks of harm.
Generally, the standard of care required of an individual is that of an ordinary, reasonable person under similar circumstances. Thus, negligence is falling to do that which an ordinary reasonable person would have done under the circumstances or doing something which an ordinary reasonable person would not have done. In addition, the negligent conduct must be the legal cause of the injury. This last requirement is sometimes referred to in terms of proximate cause or foresee ability and varies greatly from one jurisdiction to another.
There are few recorded negligence actions involving participants in sporting events. This is in part due to the problems courts have had in establishing the appropriate standard of care to apply in violent sport such as football, hockey, and boxing where a player’s actions are likely to cause injury, and where such results are an accepted part of the game. Imposing the usual standard of care to avoid conduct which in the ordinary course of events might result in injury to a fellow participant (especially if he or she is an opponent) would lead to irreconcilable difficulties between law and the rules and objectives of many games. It would, for example, be difficult to expect the opposing linemen of two football teams during a goal line stand in the final seconds of a game to refrain from conduct which in the ordinary course of events might injure each other. Arguably, to impose such a duty would destroy the aggressive nature of the game and the very qualities inherent in such sports which make them attractive to many participants and fans alike.
Recovery under simple negligence theory has also been made difficult because of the numerous defenses available. The most notable of which are contributory negligence, comparative negligence and assumption of risk.
• Contributory Negligence
IT is conduct by the injured party which falls below the standard that is necessary for his own protection. It may result from the injured party unreasonably exposing himself to the danger created by another’s negligence, or from other conduct which falls below that required of a reasonably prudent person.An injured player’s contributory negligence would bar recovery against any person whose negligence resulted in his injury. Because of the hardship which the doctrine of contributory negligence has caused most jurisdictions have abandoned it in favor of some form of comparative negligence.
There are two major types of comparative fault, pure and modified. In the case of pure comparative fault, an injured player’s negligence serves to reduce his recovery in proportion to his fault. There are two sub categories of modified comparative negligence. Under the equal fault bar approach the injured player cannot recover anything if his fault is equal to or greater than the defendant’s fault. Under the greater fault bar system the injured player’s prevented from all recovery only if his fault exceeds the defendant’s.
Assumption of risk has been by far the most effective bar to athletes attempting to recover for negligent injuries which have occurred during sporting events. Assumption of risk can take a no. of different forms. It can mean that the injured player has given his express consent to relieve the defendant of liability. Secondly, a person may voluntarily enter into some relationship with the defendant which he knows involves some risk, and thus may have tacitly or impliedly assumed the risk. Finally, the injured player maybe aware of a risk created by the negligence of the defendant and voluntarily encounter it.
Reckless disregard of safety is defined as follows:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than which is necessary to make his conduct negligent.
Conduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended, notwithstanding that the actor knows of facts which would need any reasonable man to realize the extreme risk to which it subjects the safety of others. In theory there is a difference, not always honored in practice, between intentional misconduct and recklessness. For an act to be considered reckless, it must be intended by the actor, however the actor will not intend to cause the harm which results from it. It is enough that the actor realizes or should realize that there is a strong probability that harm may result. One should be aware of the differences between negligence and recklessness. Recklessness differs from negligence which consists of inadvertence, incompetence and unskillfulness. Reckless misconduct requires a conscious choice of course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose its danger to any reasonable man. Recklessness also differs from negligence which consists of intentionally doing an act with knowledge that it entails a risk of harm to others. In order for the actor to be reckless, he must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.
Most courts have held that where defendant’s conduct is reckless, as opposed to merely negligent, contributory negligence of the plaintiff will not bar recovery since there is a difference in both the degree and kind of fault on the part of the defendant. On the other hand, with the growing adoption of comparative negligence some courts are permitting this defense to be asserted in response to a charge of recklessness. Assumption of risk is also considered a defense to a defendant’s reckless conduct.
Conclusion And Suggestions
The party injured deserve to get justice in what so manner the lex loci (Law of the land provides). The justice delivery system of our nation fails to provides quick justice to the people belonging to the sports fraternity. Since level of recklessness is difficult to prove. However, if the plaintiff is successful, the plaintiff may recover punitive damages for the outrageous conduct of the defendant in addition to the general damages. The approach of civil and criminal law falls insufficient which need to be answered by Law of torts and hence law of sports require the due consideration on “law of torts” the need of sports law is to ensure certainty and accountability in regulation and control of sports. At present there is no dearth of law and sportsmanship will only survive if the law is enforced.
The concept of trots and the legislation of sports together will help the judiciary of nation to determine the wrong and day to day front page happening in the field of sports in efficient manner. The adequate and proper liability will be imposed in professional athletics so as to make the field happy and healthy venue rather than the field of fraud and crime. Here are some of the suggestions that can be considered to make the sports an healthy event. This are :-
1) Indian Sports Act must ensure proper responsibility and liabilities of the sports bodies and Authorities; and key policies for sports bodies should consists code of conducts of persons contributing for effective working of sports along with sports fraternity, policies for discipline, selection, harassment, conflict of interests, recruitment etc. so as problems regarding corruption and ill behaviour of members can be duly taken into consideration.
2) The insurance must be provided so as in case of injury and loss to live the potential liability can be easily imposed by assessing the injury and damages and the risk can be covered.
3) The Alternate Dispute Resolution (ADR) may administer amateur sports in India as well as all appeals and adjudication under the Indian law on penalties for doping in sports and sports related disputes like match fixing, corruption, breach of contract, violence, etc. this will lead to effective solving of organizational matters.
4) The sports law should made an specific provision that are under the law bound not to make any gender discrimination among the players. For instance, Title IX in the USA is an important Act of 1972, which prohibits a federally funded institute to discriminate on the basis of gender
5) The proper pattern of Natural Justice must be followed for the redressal of disputes in sports fraternity for example cases involving allegations of drug abuse and use of performance enhancing drugs these bodies must give the concerned player the right of being heard before taking any punitive action against him and should not solely depend on the media reports and publications.
6) Since players are nowadays under public and media attention, these bodies must be careful not to cause any damage to the reputation of the players and not to exploit the celebrity status of the players without their consent. In default, these bodies become liable in damages to the aggrieved player. Spectators can also sue the sports bodies or clubs for negligence under the law of torts when they suffer unexpected injuries, given the nature of the game.
7) There must be the specific age of retirement of the person who are involved in sports along with the sports man same as applicable for Judges as age of 65 , government employees at the age of 60 years. since it is leading to the edge of monopolization. Some people are here from ages and rightly observed by Justice Verma that “some people at the helm of affairs in federations are there since ages and it seems they will remain there till god intervenes”.
# Emerging sports laws in India, Recently http://lawquestinternational.com/emerging-sports-law-india 07-01-2011, 9:30 PM.
# Tomlinson,A.(ed), The sports studies Reader: sports,culture and society (2001), London,Roultledge.
# European Commission (1998), Developments and Prospects for Community Action in the Field of Sport,
# Commission Staff Working Paper, Directorate General X, 29/09/98. p.1 & 6.
# Sport law and welfare association of India http://www.sportslawindia.info/sportslaw.htm 06-02-2011 5:30 PM.
# “ Marquette University Law School Faculty Blog”
# “Overview of Sports Law in India” http://www.lexuniverse.com/sports-law/india/index.html 09-02-2011, 10:10 AM.
# Sports Authority of India is at the forefront of “Ministry of youth affairs and Sports”. Through it sports promotional scheme, SAI supports and nurther talent in youth and provides required infrastructure and coaching .
# “Emerging Sports Law In India” http://lawquestinternational.com/emerging-sports-law-india 10-02-2011,10:55 AM.
# “Overview of Sports Law in India” http://www.lexuniverse.com/sports-law/india/index.html 11-02-2011,1:3PM.
# “Mike Tyson Assaults”, New York Law Journal, vol. 218, no.3.
# http://www.sportsvideodaily.com/wp/index.php/2010/12/04/dec-4-2006-boston-beats-montreal-in-longtime-rivalry 7/02/2011 5:48 PM.
# The American Restatement of Torts, Second is an influential treatise issued by the American Law Institute.
# Prosser & keeton, the law off torts, § 8, p. 37 (5th ed. 1984)
# Restatement (second) torts § 282 (1965)
# Prosser & keeton on torts §§ 42,43 (5th ed. 1984)
# Restatement (second) torts §§ 463, 464, 466 (1965)
# prosser & keeton on torts § 67, at 471 (5th ed. 1984)
# weistart & lowell, the law of sports §8.02 (1979)
# restatement (2nd) torts § 496b (1965)
# restatement (second) torts § 500 (1965).
# page keeton, prosser & keeton on torts, 462 (5th ed. 1984).
# Restatement (second) torts § 496a (1965).
The author can be reached at: Tapanshugehlot@legalserviceindia.com