Islj 2009 3-4 - TMC Asser Instituut

This is not an unrealistic career path, particularly for a player with so
much acumen, who had achieved much success at a prestigious club,
and grand praise from highly regarded figures in the football world.
The judge then decided not to apply any discount to the amounts
awarded in the first three post-injury years because she regarded the
defendant’s position as safe and secure, because he would have
received his salary despite any injury which occurred during these
years. She then applied a 5% discount to account for the remote contingencies
other than injury which could have occurred. This brought
the total amount of compensation to GBP 456,095
Loss of Earnings after the Trial
In order to calculate the future loss of earnings after the date of the
trial the judge assessed the sums at present day values which the
respondent probably would have earned playing in the first team of
an upper end Championship club, taking into account evidence from
the witnesses in the trial 7 and the present earnings of the respondents
contemporaries at the Manchester United academy.
The Judge also contemplated date relating to footballer’s wages and
how they had risen in, and probably would, based on statistics, continue
to rise in the future. The judge considered the figures generated
by accountants Deloitte, survey´s of footballers wages conduct the by
the Independent Newspaper 8 , the expert opinion of Mr. Stein that
Mr. Collett would play for an “aspiring” Championship club to determine
a figure for wages. The judge then added 60% of earnings for
bonuses, and a deduction of 4% for agent’s fees and deemed that the
respondent would have likely played until the age of 35, and concluded
that the defendant would have probably earned GBP 3,261,055.
Furthermore she considered that the respondent would have a 60%
chance of playing in the Premiership for one third of his career and
therefore calculated the potential difference in salaries had the player
played in the Premiership multiplied by the probable amount of time
played in the Premiership and included additional earnings of GBP
1,401,930 or a total figure of GBP 4,662,985.
Finally the judge deducted the likely earnings from the career in
Journalism, which Mr. Collett was pursuing, until the age of 35 and
applied a 15% discount to the award to account of contingencies and
came to the final figure of GBP 3,854,328.
Critiquing the calculations
Surely the most important part of this decision to assess is not the
concept of awarding damages for “potential earnings,” but the
method of calculating said damages.
I propose that if the courts are intent on protecting these “potential
earnings” and include future earnings as damages. Then the system
of calculation must be much more refined. The current test of
taking expert witnesses opinion of where the player would end up at
minimum and then factoring a discount on the total amount for contingencies
is far too subjective and relies on evidence from “football
people” who will no doubt have varying degrees of knowledge and
generally sympathy for the party in question.
I do not doubt the integrity of Mr. Collett’s witness involved in this
case for a second, each have forged a remarkable and long lasting
career in the world of football. However, can a decision be almost
entirely based on the testimony of witnesses who have such a close
relationship to the claimant; people who trained, managed and played
with the player every day. Furthermore the decision is laden with
opinion statements which are treated as fact 9 .
7 Expert witness Melvyn Stein, a consultant
to an agency company who represent
a large number of professional footballers
with extensive experience in the
football industry gave witness on the
potential earnings.
www.thesun.co.uk/sol/homepage/news/
article1545770.ece - Mrs. Justice Swift
made the award, which could rise by at
least £200,000 - after calling Sir Alex’s
evidence “most significant”
8 Survey conducted in 2005 showed that
the average wage of a Premiership player
was GBP 676,000 per year and GBP
195,750 for a Championship Player.
9 The judge held that the respondent had
a good chance of playing in the
Premiership and estimated he had a
“60% chance of playing in the
Premiership for one third of his playing
career.”
10 Assuming that gambling, online or otherwise
is legal in the jurisdiction in question.
If the English Courts are going to set a precedent of awarding people
with it is necessary to develop a more precise and less subjective test
for calculating what the compensation should have been for the
future loss of earnings.
The best method perhaps would be to take a large sample of all the
contemporaries of the aggrieved party and take an average of 1) how
long their careers were, 2) how much they earned over their careers, 3)
the increase in the league salary from the previous years. That way you
don´t have to apply an arbitrary “discount” figure which takes into
account any “contingencies” including risk of injury.
It should be noted that these average salaries also take into account
the player’s whose careers were ended prematurely by injury, therefore
those who are litigious and seek recourse to their wounds, will be
rewarded more than the footballer who accepts his injury as part of
his job, and begins to pursue another career path.
Conclusion
This decision is morally commendable, it compensates Mr. Collett for
the reckless actions of another, which deprived of him a potentially
very profitable career in sport. However, the word “potentially” is the
problem with this decision. It is too much based on potential and
hypothesis; it strays too far from the principles of the law, and focuses
too much on preserving justice, and being fair to someone who
knew the risks of getting involved in a career in sport.
When we hypothesize about what a player could have earned, if follow
the line of reasoning from this recent case we are wading in dangerous
water. How can we calculate the prospective earnings of an athlete,
when there is so much uncertainty and risk which comes with a
career in athletics. What if the player was particularly good looking, or
excellent with the press, or had a famous girlfriend or wife, or played
for a “fashionable club.” Can we calculate the prospective earnings
which are generated as a direct result of the player’s marketability?
What if we corroborate said evidence with the expert opinion of the
head of marketing of a worldwide brand, or with the management
teams who handle athletes such as David Beckham or Cristiano
Ronaldo.
It is clear that Mr. Collett had bad luck of the highest order.
However, people who engage in risky activity for their career know
that there is a certain risk which comes with their career path, and certain
securities which you are not afforded. If a professional poker
player who had a good level of success online and was able to generate
a consistent and substantial monthly income over a period of several
years; would he be entitled to sue his internet provider if their
service was down during a large tournament, and sue for the amount
which “on average,” factoring in the risk of internet coverage being
lost, he would have earned from said tournament? Would he be able
to sue the Municipal government for loss of earnings if they accidentally
cut the power lines when he was on the final table of a “big-cash
tournament? 10 ”
What about young promising dancers, actors or musicians who
suffer freak accidents and are unable to forge a career in the talent
industry? Should they be compensated for their loss of earnings as a
result of the negligence of another, whether it is in the scope of their
employment or not?
One must be conscious of the principles of contract which are
inherent to one’s employment. Certain jobs carry certain risks with
them which you must be aware of. Perhaps the athlete should have
known that there was a risk that he would be injured and never play
football again. The expert witness Mr. Wilkinson said it best during
the trial that “[B]arring injury, the worst case scenario, was that the
respondent would have played throughout his career for a
Championship club.” The key portion of this sentence is “barring
injury.” The problem in this situation is that injuries do happen; player’s
careers do get cut short. All soccer players know this and perhaps
should accept this risk as “part of the job.”
Had Middlesborough not immediately admitted liability, certainly
a noble gesture, and said that the responsibility fell on Gary Smith,
perhaps there would have been a more resilient defense. It would have
been interesting to analyze whether or not the actions of Mr. Smith
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