Islj 2009 3-4 - TMC Asser Instituut

Critiquing Collett: The Assumption
of Risk in Football as a Profession
by Adam Whyte*
Recently in the matter between Gary Smith & Anr and Ben Collett it was
decided that a football player could be compensated for future earnings that
were lost as a result of a dangerous play on the football field. Ben Collett,
once a promising 18 year old Manchester United Football Club academy
player, never regained his former ability or realized his potential to be a professional
footballer. However, football, much like any sport, is a profession
which carries a high level risk of injury and consequently the early termination
of one´s career. The participants and hopefuls know this when pursuing
this fragile career option. I will endeavour to explore whether or not
it is correct for the courts to award loses for potential career earnings; a value
which is so difficult to determine, whether the courts have the capacity to
calculate the future earnings of a footballer, and if the Judge’s calculation of
future loss of earnings was done so appropriately and accurately.
Introduction
On 1 May 2003, Ben Collett, the respondent, was playing in his first
match for the Reserves team of Manchester United. As a result of a
high, “over the ball” tackle from Mr. Gary Smith, a Middlesbrough
Football Club player, Mr. Collett suffered severe fractures of the right
tibia and fibula. He was 18 years old at the time.
Despite making an apparently good recovery from the fractures, he
never regained his former ability, and two/ three years after the accident
he gave up on professional football to pursue other career
options.
Mr. Collett issued civil proceedings against Middlesbrough
Football Club and Mr. Gary Smith, the appellants, claiming that he
had been deprived of his chance to pursue a lucrative career as a professional
footballer.
On 17 June 2009, the England and Wales Court of Appeal (Civil
Division) made a ruling on the said order awarding damages in favour
of Mr. Collett. They upheld judge’s decision and set a new standard
for what can be claimed as a result of negligence that has occurred on
the field of play.
On 3 October 2009, Lord Swift awarded the player GBP 4,577,323.
The main issue was the award for the loss of future earnings which the
judge valued at GBP 3,854,328.
Future loss of earnings; the rationale
It is common practice to compensate a worker for future loss of earnings,
where the worker has suffered damage, as a result of another’s liability
1 . However, generally the worker is compensated for the amount
of money which they would have earned based on their current position
in the company, or a position which they would have reasonably
been expected to have achieved.
* Master in International Sports Law by
ISDE Madrid and associate of Ruiz
Huerta & Crespo Sports Lawyers,
Valencia, Spain.
1 http://www.fldfs.com/wc/history.html,
http://www.enotes.com/
everyday-law-encyclopedia/
workers-compensation
2 Joining an elite list of Player’s before,
and after him to have won the award -
Ryan Giggs, Paul Scholes, Wes Brown,
Phil Neville, Giuseppe Rossi, Danny
Welbeck, and Federico Macheda to name
a few.
3 “A rarity which added to the player’s
value on the pitch”
4 Mr. Spackman had substantially altered
his view about the player in oral evidence,
after having heard the submissions
of the respondent’s witnesses.
5 The “But For Test” is the basis for
demonstrating causation of damages
incurred. legal-dictionary.
thefreedictionary.com/But+for+test -
The injury would not have occurred but
for the defendant’s negligent act. Barnett
v. Chelsea and Kensington Hospital
Management Centre [1968], Brooks v.
Home Office [1999]
6 Ben Smith & Anor v Collett [2009]
EWCA Civ 583 (17 June 2009) at
Paragraph 14
In this situation, we have an 18 year old footballer player with no
guarantee of success being awarded compensation for a profession
which he had not even begun practicing. In order to support his claim
the respondent in this case called upon “expert witnesses” in order to
testify on his behalf. Sir Alex Ferguson, the manager of Manchester
United Football Club, Mr. Gary Neville, the captain of Manchester
United Football Club, and Mr. Paul McGuiness, the club’s under 18’s
coach and Assistant Youth Academy manager who had coached the
respondent from the ages of 9 to 16.
These witnesses described the respondent as an excellent talent in a
variety of ways. They mentioned that he had won the Jimmy Murphy
Award for Young Player of the Year in 2002/2003 2 , he was a left-footed
midfield player 3 , and that the player was “self-disciplined, focused
and professional, both on and off the pitch.”
The appellants called their own witnesses, Mr. Nigel Spackman,
and Dr. Bill Gerrard, who had not seen the respondent play but had
seen film of the respondent in action, and did not view the player in
such high regard as the aforementioned witnesses.
With no disrespect to the witnesses of the appellants, it is easy to
see why the court were willing to give the opinion’s of the respondent’s
witnesses more clout and weight 4 . This was clearly demonstrated
when Dr. Gerrard used statistics to demonstrate that very few 16 or 17
year old Manchester United scholarship players enjoy a career as a top
level professional. The trial judge did not doubt the accuracy of said
statistics, but said they could not take into account the “golden opinions”
about the respondent’s game and personality.
Furthermore, the judge purported to calculate the earnings the
player would have received in his career but for 5 the injury sustained
as a result of the actions of the Middlesbrough player, Mr. Gary
Smith.
Future loss of earnings; Calculation
In order to calculate the future earnings of the player, the two paramount
factors to be considered are 1) what the annual salary of the
player would be and 2) the amount of years the player would play.
The judge then felt it appropriate to apply “discounts” which she felt
would reflect the contingent risks inherent to the periods where pay
was being determined. The loss of earnings can be divided into two
categories; the monies that would have been earned from the date of
the injury to the date of the trial, and the salary that the player would
have earned after the date of the trial.
Loss of Earnings before the Date of the Trial
The calculation of the loss of earnings before the date of the trial is
done so in a reasonable and well thought out manner. However, said
reasonableness is all based on hyperbole and potential, and not on
actual events, the career path which the judge hypothesizes the player
will take is seemingly based on the non-corroborated evidence of
expert witness Sir Alex Ferguson. It strikes me as a huge surprise that
the calculations made by the Judge were not challenged 6 .
The Judge found that in 2003/2004 Mr. Smith would have continued
to play for Manchester United without any loss of earnings for
that year. In 2004/2005 he would have stayed with Manchester
United playing mainly in the Reserves team and occasionally in the
First team, and earned just below GBP 59,000. In 2005/2006 he
would have been sent on loan to an “aspiring Championship club,”
and earned just over GBP 65,000. In 2006/2007 he would have been
sold to an aspiring Championship club, and earned just under GBP
190,000. Finally in 2007/2008 he would have remained with the
Championship club and earned GBP 236,000.
18 2009/3-4
A RT I C L E S