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Touchline • Issue 14 • 23
clear cut. Whether a player will be considered an employee
depends very much on the arrangement by which the player has
come to play for a particular club. Indicators of when a player
will be considered an employee include:
• Whether the player receives payment for their participation
from the club (as distinct from prize money);
• Whether the player has signed a contract of employment (or
a document which could be characterised as an employment
contract); and
• The degree of control exercised by the club (for example,
whether the player is required to attend training sessions and
the frequency of attendance).
Employers are liable for the actions of their employee when
the action falls within the scope of employment. That is ‘any
act authorised by the employer, or any unauthorised act which
is so connected with the authorised act that it may properly be
regarded as a mode, although an improper mode, of executing
the authorised act’.
There is no doubt that participants of contact sports, such as
football, consent to a degree of physical contact, consistent with
the rules, style and objects of the game.
Uncertainty arises when the physical contact goes beyond the
rules of the game. It is likely that any action which breaches
the rules of the game will be unauthorised by the club.
Nevertheless, the breaking of the rule, albeit unauthorised, may
still be considered to be so connected to the playing of the
game, which the player is authorised to do, that it constitutes an
act authorised by the club.
In McCracken v Melbourne Storm Rugby League Football Club
and Ors, two players from the Melbourne Storm NRL team
spear-tackled an opposing player, causing a career ending injury,
in what was found to be a dangerous and unnecessary tackle.
Evidence was presented that players at that level were trained
to cause ‘significant impact at the initial collision stage of a
tackle….which will hurt and discourage the attacker’. The aim
was to prevent the forward movement of the ball. The court
found that ‘the actions in this case (were) so far removed from
what is needed to prevent forward movement that there is…no
justification for them’. Although the tackle was one which was
not allowed, it occurred in the course of employment, and the
trial judge noted that there was no suggestion that it would not
be liable for the conduct of its players.
In the UK case of Gravil v Redruth Rugby Football Club, the
English Court of Appeal found that a club was liable for the
actions of one of its semi-professional rugby union players
who punched a member of the opposing team after a scrum.
The court found that although the punch was not allowed or
consistent with the rules of the game, the throwing of punches
was ‘an ordinary (though undesirable) incident of a rugby
match’. Accordingly, the player’s actions fell within the scope
of his employment as an employee of the club. Although the
player’s contract with the Club contained provisions requiring
the offending player to comply with the rules of rugby union,
this did not allow the club to avoid vicarious liability for the
player’s actions.
In summary, the decisions in McCracken and Gravil illustrate that
it will be difficult for a club to persuade a court that it should
escape vicarious liability for its players’ conduct outside the
rules of the game when that conduct occurs in the flow of play
such as a tackle. The outcome may be different for an assault
that is far removed from play.
Managing the risks associated with legal play in fast moving
contact sports is notoriously difficult. Managing the risk
associated with human emotion, such as whether to respond
to perceived provocation with a closed fist or pushing the
boundaries of what constitutes legal tackling is even more
difficult. Once an injury has been sustained through illegal
conduct on the field, it will be too late for a club to be able
to disassociate itself from the player’s conduct. Accordingly,
when recruiting players, clubs need to consider whether they
have ‘form’ in regards to potentially illegal or hazardous play
and whether they wish to take on that risk. A further step is to
adopt and implement policies to identify potentially illegal or
dangerous play and take internal action (either through training
or disciplinary measures) against players whose conduct on the
field is potentially hazardous but may have escaped attention
from the code’s disciplinary bodies. The player’s contract in
Gravil contained a clause requiring the player to indemnify
the club against liability arising from the player’s illegal
play. However, in the absence of the player having access to
appropriate insurance, it is uncertain whether such contractual
provisions would be an effective deterrent or means for a club
to recover its exposure arising from injuries sustained by an
opposing club’s player.
Whilst prevention of injuries is the preferable method of
addressing this risk, the final safeguard for a club is to ensure
that it has appropriate insurance cover that will respond to
claims arising from a player’s conduct for which the club is
vicariously liable.
SCOPE OF EMPLOYMENT
FULL TIME WRAP UP