Civil liability for sports injuries and why courts compete with arbitration in Belgium
In this article, Sven Demeulemeester and Grégory Ernes use the recent case of Standard Liège player, Medhi Carcela, to explore the rights of sportsmen and their clubs to pursue an action in the Courts for injuries caused by competitors, before analysing the impact that the arbitration clauses often found in sports governing bodies’ regulations may have on such rights.
Civil law liability for sports injuries in Belgium
In Belgium, although a sportsman is deemed to accept the normal risks linked to the exercise of his sport, he can claim damages for injuries inflicted on him by another player, to the extent that the perpetrator failed to meet the standard of general due diligence.1 The action of the player causing the injury is measured against the behaviour that would have been displayed by another reasonable sportsman placed under the same conditions. Both the injured player and his club are entitled to claim damages, and both the perpetrator and his club can be held responsible. However, arbitration clauses, which are often found in sports governing bodies’ regulations and bye-laws, may in some instances hinder the ability of a sportsman to bring a tortious liability case before a civil court. As we shall see, though, the validity of such arbitration clauses is subject to some debate.
Horror tackle: the case of Carcela and Ruytinx
On 8 December 2013, during a Belgian Pro League football match, Mehdi Carcela, a Standard Liège player, was brutally tackled and injured by an opponent, Bjorn Ruytinx of OH Leuven.2 Before the incident took place, Rutyinx had allegedly verbally abused and threatened Carcela by saying that he would “put him in the hospital”. Immediately after the incident, Ruytinx laughed and appeared to then use his knee to strike Carcela, who remained lying on the ground, in the face. In retaliation, Carcela slapped Ruytinx in the face. The match referee gave B. Ruytinx a yellow card, which all commentators agreed was a light punishment. After the match, B. Ruytinx himself declared that he had deserved a red card. M. Carcela, meanwhile, was shown the red card for having slapped his opponent in the face.
M. Carcela’s ankle injury was severe; it was announced afterwards that he would be unable to play for three months.
The claim for damages in the courts
In January 2014, Carcela and Standard Liège jointly lodged civil proceedings claiming compensation for the damage caused to them arising out of the incident. The action was bought against both Ruytinx and his club, OH Leuven.
Under Belgian law, Ruytinx’s on-field behavior towards his opponent, Carcela, is governed by the equivalent of the law of tort, namely a legally established duty of care between the two parties, existing without the need for a direct contractual relationship.
To test whether Ruytinx actions breached the duty of care he owed to Carcela, the civil courts were asked to determine whether or not Ruytinx displayed the same level of behaviour as a reasonable sportsman placed under the same conditions would display.
Although compliance with sporting rules – particularly FIFA’s match rules – can have an influence on determining whether or not a football player’s behaviour constitutes a breach of duty,3 it is not a determinative criterion.4 Furthermore, it is not necessary for the Court to consider whether or not the player committed the fault intentionally. A breach of the standard of general due diligence is sufficient (i.e. reckless or thoughtless actions would suffice).5
Belgium’s theory of risk acceptance
However, Belgian doctrine has developed a particular concept for such matters called the “Theory of Risk Acceptance”, which states that when participating in a game, a player accepts the risk that he may be injured as a result.
Having been tested on numerous occasions before the courts, this concept does not however seem to raise the bar for triggering liability when compared to non-sporting situations. Like any other individual, a sportsman must display the same level of diligent behaviour towards his competitors as any other reasonable sportsman placed in the same situation would do.6
Accordingly, by practicing a sport, a sportsman only accepts the normal risks linked to that sport, including the normal risks of injury;7 however, importantly, he does not accept being subject to ‘horror’ tackle even if it that tackle is reckless not intentional. Belgian case law seems to diverge on this point from case law in other jurisdictions. For example, in France the equivalent of the Theory of Risk Acceptance in sport by the victim of a potentially civil wrong has a lower standard of care, and requires evidence of a willful action to be proved.8
Ultimately, the case did not reach trial (see below). However, based on the background of the case and the facts presented to the court, both Carcela and Standard Liège had, in the view of these authors, a reasonable chance of successfully obtaining damages before a civil court.
Had the claim succeeded, it is also interesting to note that OH Leuven - as Ruytinx’s employer - would likely have been held jointly liable for the damages resulting from the fault committed by their employee in the course of his employment.9 Under Belgian Law, there is a presumption that the employer is jointly liable, even if he did not commit any fault.10
Arbitration and the rules of the Pro League
In reality, it did not come to that, as immediately after the claim was filed with the Liège court, a second dispute arose.
In Belgium, as in most countries, a governing association equivalent to the Premier League, called the Pro League, unites the top-flight football clubs. The Pro League’s by-laws contain a somewhat peculiarly worded arbitration clause imposing the obligation upon member clubs to:
“(…) accept without reservations the obligation to settle every conflict that could rise between the members and/or following its membership, as well as every conflict that could rise between a member and the association, both for information purposes and on an exclusive basis, by an arbitration tribunal, constituted of three arbitrators with the Belgian Court of Arbitration for Sport." 11
The Pro League, or at least a number of its member clubs, feared that bringing a case like Carcela’s before the civil courts would be negative for football as it could lead to an avalanche of court cases concerning injuries on the pitch.
What they perceived as a violation of the by-laws – i.e. commencing legal proceedings before a civil court against another member club of the association – even led to a proposal to exclude Standard Liège from the Pro League’s General Assembly. Such an exclusion from the Belgium’s top-flight league would have had dramatic consequences for Liège; at the time they occupied the top spot in the league and so notable effects of exclusion would have included the loss of potential broadcasting rights’ revenues and exclusion from participation in the following season’s UEFA Champions League.
Standard Liège for its part considered that exclusion as a sanction would be unlawful, as it would constitute a violation of multiple fundamental rights guaranteed at both the Belgian and the international level, such as the denial of access to justice, the (negative) freedom of association and freedom of competition.
Are sports club strictly bound by arbitration clauses?
The question at the core of the debate was whether a party could be ‘forced’ to go to arbitration for dispute resolution, and particularly where this obligation was based on an arbitration clause included in the by-laws and/or the regulations of a sports association or federation. Belgian doctrine and case law remain divided on this issue.
The case against binding arbitration clauses
Some argue that such arbitration is not freely submitted to by an association's members. To be able to participate in a sporting competition, the sports clubs have to become members of or have to affiliate with the association, and, by doing so, have to obey a series of rules, including the acceptance of arbitration in cases of conflict. As it concerns the waiver of a fundamental right, the right of access to government tribunals requires the unambiguous and free consent of the committing party, all the more so because membership is obligatory and could therefore raise questions about the negative freedom of association.12
Also, this type of arbitration clause can often be unilaterally and generally drafted and assigns all present and future litigation to an arbitration body determined by the association or federation.
Moreover, it is sometimes argued that arbitration courts often maintain close links with the sporting federation in question, which raises questions about independence and impartiality. Compliance with Article 6 ECHR, according to which a litigant has a right to a fair and public hearing by an independent tribunal established by law, which must pronounce its judgment publicly, is also often seen as a problem.13
The case for binding arbitration clauses
Others argue that arbitration is the norm in sports matters. The rules of practically all professional sports contain such an arbitration clause. Sports actors have had recourse to sports arbitration, without experiencing any problems, and have been known to praise its benefits in terms of uniformity, efficiency and speed.
Arbitration in Belgium does not even require a written commitment. The agreement to submit to arbitration can be oral so long as it can be proven.14 The fact that the arbitration is rooted in the regulations and/or by-laws of a sporting federation is deemed, by defenders of sports arbitration, not to create any obstacle to the voluntary nature of the arbitration and has no impact on the validity of the arbitration clause.15 This case is made stronger if the arbitration clause is the product of fair negotiations by all affected stakeholders, as opposed to being imposed upon clubs.
An international perspective
The question of whether or not such arbitration is “freely” undertaken remains subject to debate at the international level as well. In this regard, the case law of both the Court of Arbitration for Sport (“the CAS”) and the Swiss Supreme Court (“the FSCS”) offers some guidance.6
The FSCS, in its Nagel17 decision, decided that the acceptance of an arbitration clause is not an excessive obligation, even if it were established that the sportsman could not have participated in the competition if he would not have accepted the arbitration clause.
Furthermore, the consent to arbitration must be viewed in light of the specificities of sports’ litigation. In view of the international nature of such cases and to ensure a certain sporting equity and a balance in the competitions, arbitration is the only way to provide athletes with an efficient protection that is transparent to all of them.18 The FSCS holds that the sporting arbitration system of the CAS forms a pillar of sport.19
The CAS recalled the Nagel jurisprudence in the Stanley Roberts case:20 indicating that a global reference is valid and sufficient between two parties, who are experienced in the field, or when an arbitration clause is customary in the particular sector of business, regardless of whether the other party has indeed read the document of reference and therefore knew that it contained such a clause. The FSCS’s subsequent confirmation of this decision21 has led to a rather liberal approach when assessing the validity of sports arbitration. This liberal approach was recently confirmed in the Wickmayer case.22
Perspective of the European Commission
In the Cañas23 case, the European Commission was asked about whether sportsmen could turn to national judges for an appeal against a sentence rendered by the CAS.
The Commission rejected the complaint, considering that although limitations of the access to ordinary courts could be part of a violation of competition law, these limitations in themselves do not necessarily result in restrictions to competition. It is when the limit of court access is intended to protect competition restrictions that these limitations could be a competition law violation. If the question of a limitation of the access to courts has never been raised, that aspect would never permit to fulfill on its own the criterion of common interest with the objective of conducting a profound examination.24
The independence and impartiality of arbitration
Concerning arbitrators’ independence and impartiality in relation to sporting federations, the FSCS’s case law once again is interesting as the FSCS has already considered the rules on the organisation of the CAS in the context of Article 6 ECHR.
In 1993, in its Gundel decision, the FSCS questioned the independence of CAS, principally because the IOC was a party in the case. This decision sped up a profound reform of the CAS, which had been gathering pace over the previous 10 years. In 1994, the International Council of Arbitration for Sport (“ICAS”) was set up as an independent body, supervising the CAS and appointing the arbitrators listed at the CAS. The ICAS consists of members of sporting federations, athletes’ representatives and independent persons linked to sports. Today, the ICAS ensures the administration and the financing of the CAS.
After the Gundel decision25 and the subsequent CAS reform, the FSCS had to deliberate about the new CAS arbitration regulations, in view of Article 6 ECHR. In its Lazutina judgment of 2003 the FSCS stated that the CAS was sufficiently independent of the IOC, as well as all other parties who call upon its services, so that its decisions can be considered as genuine sentences, comparable with the judgments of a national court.26
While the CAS and the FSCS have both taken a clear position on this issue, the debate remains lively and ongoing before various national civil courts, where decisions are often extremely contradictory.27 A case, which is to our knowledge still pending,28 was brought before the ECHR,29 directly based on Article 6 ECHR, regarding the CAS arbitrators’ independence, and it will be interesting to monitor its progression.
Coming back to the case this article began with, no decision was eventually rendered by the Liège court on this issue.
Following an unpublished legal opinion of an alleged independent expert, the claimants, Standard Liège and Mr. Carcela, decided to terminate their actions. Although the position of the Liège civil court in the matter will never be known, it should be noted that Belgian laws are less liberal than Swiss laws as far as they concern the consent to arbitration and the validity of an arbitration clause. Also, Belgian courts are known to be rather critical towards sports arbitration30.
Therefore, in the view of these authors, both Standard Liège and Mr. Carcela had a clear opportunity to have a civil court cast aside the arbitration clause, for this court to hear their case and to grant damages.
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- Tags: Arbitration | Belgium | Contract Law | Court of Arbitration for Sport (CAS) | European Commission | Football | France | Governance | International Council of Arbitration for Sport (ICAS) | Premier League | Pro League | Regulation | Swiss Federal Supreme Court (FSC)
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Sven Demeulemeester is partner in ALTIUS' Employment and Sports Law department. Legal 500 describes Sven Demeulemeester’s approach as ‘the perfect balance between legal insight and business acumen’. Sven is also the head of ALTIUS' Sports Law practice, advising players, clubs and governing bodies on contentious and day-to-day matters in the sports industry.Sven is also member of l'Association Internationale des Avocats du Football.
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Grégory Ernes is senior associate in ALTIUS’ Sports Law department. He focuses on all aspects of sports law. Grégory is also member of l'Association Internationale des Avocats du Football and arbitrator of the International Judo Federation.
T +32 426 14 14
Follow the ALTIUS sports law practice on Twitter (@ALTib_Sportslaw)