When do sport teams' initiation ceremonies cross legal boundaries? Part 1
Published 17 July 2014
Initiation rituals are commonly used to mark the arrival of a newcomer. From welcoming a new member to a college fraternity, to an academy player graduating to the first team at a football club, they are seen as a way of engendering team spirit, promoting camaraderie and invoking a sense of quasi-brotherhood. However, they also tend to take place behind closed doors and apparently some tend to fall outside society’s generally accepted rules and principles.
In Part 1 of this two-part article, Jack Thorne considers the potential tortious liability for clubs that can arise as a result of initiation ceremonies.
In Part 2, Jack Thorne and Andrew Peters outline the most common employment claims that could arise and draw my conclusions on the risks posed to clubs by initiation ceremonies.
Former Manchester United players David Beckham, Paul Scholes and Gary Neville have previously lifted the lid on the initiations they were subjected to when they began their apprenticeships with the club. In the revealing documentary “Class of ‘92”, Beckham describes being obliged to perform a sex act on himself in front of his teammates while looking at a picture of former United star Clayton Blackmore, while Scholes was subjected to the slightly less demeaning fate of being put in an industrial laundry drier. Neville suffered perhaps the most painful treatment, describing in his autobiography the moment he was stripped naked and had the United kit rubbed into him in wax using a wire wool brush.
More often than not, such rituals are dismissed as a necessary rite of passage and nothing more than harmless team “banter” in physical form. Certainly, none of Beckham, Scholes or Neville appear to bear any lasting ill-feeling. However, that does not obscure the fact that apparently "harmless" rituals could constitute tortious and even criminal acts, including sexual assault and sexual harassment, battery or actual bodily harm.
This presents a genuine concern for professional sports clubs, particularly if initiations go too far or if the new player does not take it in the spirit intended. Where a player suffers some form of injury or believes that he is being discriminated against or bullied as a result of taking part (or refusing to take part) in an initiation, there is a real risk that the Club may be held liable.
More recently however, the issue of proceedings brought by players as a result of injury suffered during initiations and other punishing rituals has arisen in England too. Ex-Stoke City player George Blackstock has claimed that while he was a player there in the 1980s, he was subjected to a ritual pursuant to which he was held down on the physio table while Ralgex was smeared on one finger of a goalkeeper's glove and an insertion then followed. He issued proceedings against former goalkeeper Peter Fox for assault and the Club for vicarious liability and negligence citing “distress, pain, humiliation, injury, loss and damage”, including “regular flashbacks” of the assault
The negligence claim against the Club was rejected by Preston County Court,5 but the assault and vicarious liability claims have been transferred to the High Court with a case management date scheduled for June this year followed by pre-trial hearings in January 2015.
According to press reports, Mr Blackstock’s barrister described the dressing room door being closed and the then 16-year-old “struggling and screaming while Mr. Fox held the glove.
Mick Mills, the Club’s manager at the time, is accused of turning “a blind eye
” to the “gloving
” of several players, which (if true) would significantly weaken the Club’s potential argument that the players were acting on a “frolic of their own
While the outcome of this case remains to be seen, and one would assume the allegations are of an extreme nature, it does highlight the risks posed to sports clubs where initiation ceremonies - whether or not of this extremity - result in a player suffering physical and/or mental harm.
Liability for physical or mental damage in tort
Initiation ceremonies can entail a number of torts - where a player is physically affected or harmed they could give rise to claims of assault, battery or negligent causing of harm, whereas initiations designed to humiliate a player but not physically affect him may still give rise to a claim if they result in his suffering a recognised psychiatric injury.
However, an initiation causing only distress or humiliation that either does not amount to a recognised psychiatric injury or is not coupled with a trespass to the person, such as assault or battery, is highly unlikely to give rise to liability. It was established by the House of Lords in Wainwright and another v Home Office8
that an unjustified infliction of humiliation and distress does not, without more, constitute a tort. Indeed, in his judgment, Lord Scott alluded specifically to initiation ceremonies and commented that:
“The issue of importance in the present case is whether the infliction of humiliation and distress by conduct calculated to humiliate and cause distress, is without more, tortious at common law. I am in full agreement…that it is not. Nor, in my opinion, should it be. Some institutions, schools, university colleges, regiments and the like (often bad ones) have initiation ceremonies and rites which newcomers are expected to undergo. Ritual humiliation is often a part of this. The authorities in charge of these institutions usually object to these practices and seek to put an end to any excesses. But why, absent any of the traditional torts such as assault, battery, negligent causing of harm, etc, should the law of tort intrude?”9
It is therefore likely that initiations will only present risks in tort where they are by their nature capable of causing a player to suffer physical or psychiatric harm. In the case of Mr Blackstock, it is clear that a player can easily suffer physical damage if physically penetrated with an object doused in Deep Heat, and it is not inconceivable that the ordeal of being held face down on a physio table while the act was carried out could lead to some form of recognised psychiatric injury such as post-traumatic stress.
On the other hand, the more docile (and perhaps the more common) initiations, such as requiring the newcomer to sing a song or tell a joke in front of his new teammates, are unlikely to pose much of a threat in tort. Such initiations are generally found embarrassing, in some cases humiliating, rather than causing physical or mental harm, and nothing in law protects us completely from being embarrassed or humiliated.
Primary liability – breach of duty of care resulting in negligence
Under English law, it is well established that employers have a duty to take reasonable care of the health and safety of their employees and to provide a safe workplace and a safe system of work.10
If a club breaches this duty of care and one of its players suffers injury as a result, then it may be liable to the player in damages as having breached its duty by failing to ensure a safe workplace. It may be deemed to have failed to take sufficient steps to ensure a safe workplace for a number of reasons but mostly it will be by not having appropriate rules in place for preventing such harm from occurring or having the rules but not enforcing them.11
If the club is deemed to have breached its duty of care, it may raise the usual defences such as lack of causation, remoteness or consent (see below). However, it would be difficult to raise these defences successfully in circumstances where the club is aware that initiations which may cause harm are taking place and yet has either turned a blind eye "in the interests of team morale" or has not taken any action to prohibit them.
Secondary liability – vicarious liability
Vicarious liability is a principle of English law by which an employer can be held liable for the wrongful act of an employee in circumstances where the wrongful act is sufficiently closely connected to the employee’s employment that it would be fair and just to hold the employer responsible.12 It is imposed at common law or by statute13 and arises even where the employer has committed no wrong and therefore in effect imposes a form of strict liability.
The imposition of liability on a no-fault basis is driven mainly by public policy. It encourages employers to maintain standards of “good practice” by their employees14 and employers are likely to have deeper pockets and compulsory employee liability insurance15 in order to compensate victims. In the sporting context, especially where injury is sustained, compensation could be very significant.
If a player suffers injury during an initiation because of the wrongful act of another player, then the injured player may make a claim for damages against both the offending player and the club. In such circumstances, whether the act of the offending player is so closely connected with his employment that it would be fair and just to hold the club vicariously liable would be a question of fact. However the following are points to consider:16
- the connection between what the employee was employed to do and the tort committed;
- the closeness of the connection is assessed not only in terms of the nature of the work but also in relation to time, place and causation;
- a broad view must be taken of the nature of the employment and what is reasonably incidental to the employee's duties under it; and
- a value judgment needs to be made, having regard to the closeness of the connection with the employment.
Clearly initiations do not form any contractual part of a player’s employment, but they are commonly performed at clubs either with or without the knowledge or tacit consent of those in charge. In some circumstances it may be “fair, just and reasonable” to impose liability on the club.
Even if initiations take place away from the club's grounds, this does not necessarily mean the club cannot be held vicariously liable. Vicarious liability has been found to arise pursuant to wrongful acts committed by employees outside the workplace, such as social events with colleagues.17 In short, the fact that the act represented serious misconduct by the perpetrator is not by itself enough to break that connection with the employment.
In order to successfully defend a claim for vicarious liability, a club would have to show that the offending employee was "on a frolic of his own" and not acting within the course of his employment.18 This will be easier to establish if the club can show it has clear and relevant workplace rules and procedures in place which are enforced.
Consent, limitation and policy
When considering both primary and vicarious liability the question of consent, or voluntary assumption of risk, needs to be raised. If a player consents to taking part in an initiation knowing full well what the initiation entails and any dangers associated with it then this may be an absolute defence to any subsequent claim brought by that player.
First, it must be established that the player had full knowledge of the nature and extent of the risk. It is insufficient for the player to have merely known that the risk exists. Similarly, the defence will fail where, for example, the player is informed of one aspect of the initiation which cannot cause any harm but not informed of another aspect which does because the player cannot voluntarily assume the risk if they are not aware that the risk exists.
Second, it must be established that the player willingly gave his consent. The consent must be freely and voluntarily given, without duress or fear. Initiations can pose problems in this respect as players may feel under pressure from their teammates to take part and concerned that a failure to take part may result in their being ostracised or seen as a “bad sport”. This may particularly be the case with younger players who feel intimidated or threatened by the more senior players in the team.
Claims for damage suffered during initiations that took place some time ago also raise the question of limitation. In English law, the general position is that a claim in tort must be brought within six years from the date when the negligent act or omission occurred.19 It is possible to bring a claim outside the six-year limitation period if the damage complained of was not discovered until after the expiry of the six-year limitation period. In such circumstances, a claimant has three years from either the date of knowledge of damage or the date when he ought reasonably to have known of the damage.20 In claims for negligence resulting in personal injury the limitation period is three years from the date when the negligent act or omission occurred or the date of the claimant's knowledge of damage, whichever expires later.21 Although it will not usually be the case that the ill effects from such incidents remain unknown for so long, the Court has a discretion to extend the time limits imposed for claims for negligence resulting in personal injury if it deems it appropriate.22
Mr Blackstock’s negligence claim against Stoke City was obviously well out of time and was rejected by Preston County Court on the basis that the passage of time since the events would unfairly prejudice the Club’s defence. It will therefore be interesting to see how the issue of limitation is dealt with in the remaining claims that have been transferred to the High Court. Latent damage can be common, particularly psychiatric damage such as post-traumatic stress. However, whether claims founded on initiations that took place in the not-so-recent past will defeat limitation issues remains to be seen.
There are also policy points to consider. It was reported that Stoke City argued that if the action were successful it would open the floodgates for many similar civil claims because of the common practice of initiations and rituals at other sports clubs at the time. The barrister representing Stoke told Preston County Court:
As the Blackstock case is the first of its kind before the English courts, it will be up to the High Court to determine this point. However, while historic claims may be rejected on policy grounds, this argument will not necessarily extinguish claims that arise in the future.
In Part 2 Jack and Andrew Peters, outlines the most common employment claims that could arise and draw my conclusions on the risks posed to clubs by initiation ceremonies.
This article was authored by Jack Thorne
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