The legal remedies for victims of child abuse in English football
Published 06 December 2016 By: Patrick Sadd
Watching the distress of footballer 43 year-old Andy Woodward disclosing his experience of being sexually abused as a boy from the age of 11 until 15 by Barry Bennell, his football coach, is a stark reminder if one were needed of the far-reaching emotional damage that abuse brings in its wake.1
There are no reported cases of claims within professional football brought by former players against their coaches for sexual abuse when playing in youth teams, football academies or as apprentice players. Claims against youth club leaders, sports coaches in schools and local clubs are not unusual and have been brought, albeit most have been settled. Other jurisdictions have had well-publicised claims where former school sports coaches are alleged to have sexually assaulted pupils.2 In such cases the nature of the relationship between the coach as a teacher on the one hand and the young person as pupil on the other has been highlighted.
As more footballers come forward to give their own accounts of being sexually exploited and as the Football Association announce3 the setting up of their own internal inquiry to be chaired by Kate Gallafant QC, what legal remedies are open to the growing number of those coming forward? Who should the complainant then be suing? And does the context in which the abuse occurred – the provision of coaching in boys’ football clubs linked to well-known clubs as well as coaching provided in youth teams of those same clubs – create any specific legal challenges? Accordingly, this article examines:
- Actions against the perpetrator of abuse
- Actions against the employer of the perpetrator
- The two stage test for vicarious liability
- GB v Stoke City Football Club & Peter Fox
- Collett v Smith
- The two stage test for vicarious liability
- The case against Barry Bennell
Actions against the perpetrator
In these scenarios, the structure of the legal claim is now well-established. Unless there has been a conviction of the coach or youth leader, the complainant has to prove that he or she was abused.
Subject to limitation (discussed below), he or she can sue the perpetrator or the perpetrator’s estate (as happened in the Jimmy Savile claims) for direct assault.
Since the court’s remedy is limited to financial compensation, the decision to sue the perpetrator directly will depend entirely on whether the perpetrator still has assets to meet any judgment.
Actions against the employer of the perpetrator
The complainant can also sue the club employing the coach on the basis of vicarious liability4 – the public policy that makes an employer responsible for an employee’s breaches where those breaches occur in the course of the employee carrying out the job he has been entrusted by the employer to do. The club is likely to be insured or have funds to meet a claim.5
The court’s approach to assessing legal liability is approached in two stages.
- The first stage involves the Court having to establish the nature of the relationship between club and coach. In most cases this is likely to be straightforward: there will be an employment contract between the coach and the club. In some cases – where local clubs farm young players out to larger clubs – the coaches may be volunteers, the club may itself have a specific legal status (an unincorporated association) which in turn may require individual representative members to be sued.6 With a volunteer appointed as coach the conventional employer/employee relationship does not apply. The court looks to see whether on the facts the relationship between coach and club is “akin to employment”. Determination of the issue is fact sensitive and the nature and extent of control and direction of the coach by the club would be key issues.
- The second stage requires the court to look at the scope of the role which the coach was employed by the club to carry out – in this instance to further the aims of the club in bringing up skilled players to play for the club – and to assess whether there was a “close connection” between the duties the coach was expected to carry out by the club and the sexual assaults he committed.
The idea of close connection – analysed in several of the leading cases7 – is perhaps more immediately identifiable in the context of a club employing a coach to mentor its youth team. Whilst a club might want to argue that the coach’s abuse fell outside the duties he was employed as coach to carry out, in practice such a defence will be difficult to maintain. The relationship between the young and keen apprentice footballer and his coach is a paradigm of the potential for an abusive coach exploiting the role the club has taken him on to perform.
The accounts from the sportsmen so vividly and painfully given on the BBC’s Victoria Derbyshire show8 – dreaming of playing football at a professional level, being picked for a side, having access to modern coaching, learning a whole raft of skills, having those skills developed – all of these meant that as young footballers they became entirely dependent on the coach who could make or break their future. From the club’s perspective, the coach was nurturing players of the future in the interests of the club. As one of the participants put it in describing Bennell’s sexual assaults on him – “this is what I thought I had got to do” to get on as a young footballer wanting to play professionally and to prosper as a player for the club. Andy Woodward speaks of the ambition at the age of 11, 12, and 13 of being a professional footballer “all I ever dreamt of”; he thought that if he did not go along with what the coach wanted, “football would be taken away”.9
For more on vicarious liability in sports please see here.10
GB v Stoke City Football Club & Peter Fox
An example of where the court found that the second stage was not met arose in GB v Stoke City Football Club & Peter Fox11. In that case the claimant alleged that when he had been an apprentice player with Stoke City in 1986-1988 he had been assaulted twice by a first team player. The assaults were said to be part of an established "ritual" of punishments by senior players on apprentices not doing their allotted jobs to a necessary standard in the professionals’ dressing room. The claimant alleged that he had been subject to “gloving”: he maintained that the second defendant had inserted a gloved finger covered in hot rubbing ointment into his rectum.
The claimant had moved from Northern Ireland just before his 16th birthday to take up his position as an apprentice with Stoke City. The judge noted that it had been the claimant’s "dream" to become a professional football player; he was enrolled as a youth trainee and trained under the youth team coach. Part of the evidence at trial related to football logs kept by the youth coach who notes that the claimant was having difficulty settling away from home.
The assaults were alleged to have happened when the Claimant was 16 and 17.
The judgment spells out emphatically what the trial was not about,
"Firstly, it is not about alleged systemic or institutional neglect or abuse of apprentices at this club during the 1980s or at any time. Secondly, it is not about any lack of care for and/or abuse of apprentices at any other football club at that time or at all. Thirdly, it is not about the rights or wrongs, legal or moral, of any "initiation rituals" which might in the past have been or may even now still be a feature of life as a football player at any level. Suggestions made in evidence and in submissions of a culture of bullying and/or punishment rituals at this or other clubs in the past may be matters to be considered or determined in other proceedings involving other claimants against this or other clubs in other courts."12
The judge also distinguished the case from historical sexual abuse – this was a practice alleged to have been carried out in the home dressing room in front of players and apprentices. It had none of the characteristics as identified by the judge of sexual abuse: carried out furtively or in secret, by an adult and often accompanied by threats.
The club and the player denied that any such practices took place at the club. The club accepted that had the claimant been subject to "gloving", this would have amounted to a sexual assault.
After a 13 day trial the judge dismissed the case, finding the claimant’s evidence inconsistent and his credibility undermined.
In the context of the revelations about abuse by coaches, the case is particularly relevant on vicarious liability. The judge concluded that it was not part of the professional player’s duties however understood, to train, coach or discipline apprentices. As such had the allegations been proved, the club would not have been liable because the assault would not have fallen within the scope of the duties the played was required to perform for the club.
Significantly, however, the judge went on to find,
"...if the claimant’s allegations had been made against Mr Lacey [ the youth coach ] , who had been given direct authority over the apprentices and duties in relation to them including disciplinary powers, then the club would probably have been vicariously liable if the allegations were to be proved."13
The judge’s view fits entirely with the analysis necessary to meet the second stage of vicarious liability, and in the context of young apprentices and their coaches. The coach is mentor, guide, and controller of the apprentice’s day-to-day life and is expected by his club to fulfil that role.
In rejecting the claimant’s case on vicarious liability the judge concluded,
"I consider that if I were to accept it I would be significantly and unjustifiably extending the scope of vicarious liability. Most if not all apprentices or trainees in all workplaces, not just sporting organisations, would be at such a theoretical risk and such a finding would be little short of holding that any employer should be vicariously liable for any assault on any apprentice or trainee by a full-time employee in all circumstances. If not a “leap”, as Mr Fewtrell suggested, it would be a step further than the authorities justify. I am not prepared to make that step on the facts of this case."14
For more on the case of GB v Stoke City Football Club & Peter Fox please see here.15
Collett v Smith
A more recent example of a major club’s dependence on its Youth Team can be found in Collett v Smith16. Ben Collett was an 18-year-old player who fractured his right tibia and fibula when playing for Manchester United reserves against Middlesbrough reserves. Following recovery, he never got back to his pre-accident levels of ability and gave up a professional career after a few years.
He sued Middlesbrough on the basis that he had been deprived of his chance of following a lucrative career as a professional footballer. Collett was coached in the Youth Academy squad at Manchester United from the age of 9 until 16 – evidence at the trial included comment on the promise he showed at 13, 14 and 15 from the Youth Team Assistant Manager. The court found that he would have gone on to have a successful playing career, benefitting the club and himself.
The case against Barry Bennell
Barry Bennell was employed to develop young talent. Accounts suggest that he was considered a talented player and a skilled coach. He appears to have been given free rein as to how to coach young players. The club delegated to Bennell the responsibility of coaching and raising players for the club. In Bennell’s case this included having boys stay at his home as part, presumably and ostensibly, of building a team spirit and creating camaraderie, as well as trust between players and their coach.
Bennell’s mode of operating as an abuser was to groom those whom he would go on to sexually assault. The boys were confronted with the realisation that if they did not comply with the demands of their coach, they would not get on as players. As they saw it they were dependent on Bennell for their future football career. The fact that Bennell took the opportunity to abuse boys in the course of carrying out his job as coach would not absolve the club of legal liability towards his victims. The harrowing accounts now publicised suggest that there was a "close connection" between his employment as coach and the abuse he perpetrated.
A player abused as a young apprentice in the 1980s and 1990s would need to overcome the hurdle of limitation. Ordinarily a claim for non-recent abuse, when viewed dispassionately, is a claim for personal injury. As such, it comes within a primary three-year limitation regime: the claim against the club employing the coach would have had to have been started within three years of the player’s 18th birthday.17
Following the decision of the House of Lords in A v Hoare18 in 2008, the court extended the discretion to disapply the primary three-year limitation to deliberate assaults. In deciding whether to disapply the primary limitation period under section 33 of Limitation Act 1980 the court considers whether a fair trial of the issues is still possible “in all the circumstances”. Are witnesses still alive? Was the perpetrator convicted? If not is he available to give evidence? Why is the claim only being made now? To what extent is it still possible for the club to investigate the losses now being claimed? This last line of argument is particular relevant to players’ claims where it might be suggested that one effect of the abuse has been to blight the player’s professional career – leading to an argument that but for the abuse, his earnings as a footballer would have been higher. This will be challenging to prove and not only because of all the competing variables affecting a professional footballer’s career. After 20 or 30 years, the evidential difficulties for both claimant player and defendant club in recreating the player’s potential is obvious. It is a difficult that the club would be likely to rely on in raising unfairness in having a claim tried.
Ben Collett’s case related to a far more recent period. In his case he was awarded just under £4 million to compensate him for loss of future earnings as a professional footballer in the Premiership to the age of 35, based on an assessment of his loss of a chance. The case report suggests that he was an exceptionally talented player: the award for loss of earning reflects that view. Ben Collett’s professional career was foreshortened by physical injury – a more readily accessible set of circumstances by comparison to the effects of psychological and psychiatric harm.
Mental injury is not immediately visible. Those players afflicted by emotional difficulties, which in turn adversely affected their professional careers, remain entitled to claim for damages if they can show that their sporting career was adversely affected by the psychiatric harm caused by the abuse. A claim can be made to recover the difference between what the player would have earned based on supporting evidence from managers and coaches and what in fact they did earn before retiring from professional football. In collating the evidence in projecting the player’s career trajectory, it would be difficult for a club to gainsay the evidence of the coach promoting the player at the time who was also the player’s abuser.
This is a cruel irony of Bennell’s abuse: accounts suggest that he was respected as a talented football coach. It may be a further damaging aspect of his abuse that he identified boys to be coached not because of their precocious talent but because he saw them as vulnerable and potential targets for him to abuse.
Players would also be entitled to recover damages for the psychiatric and psychological harm suffered, and for any treatment costs incurred as a consequence of the mental health problems arising from the abuse. Of course the remedy available to those abused is limited to financial compensation. As those players appearing on the BBC Victoria Derbyshire programme emphasised, another strong motivation for wanting to come forward was to prevent similar situations arising again.
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- Tags: Assault | Athlete Welfare | Football | Limitation Act 1980 | Personal Injury | United Kingdom (UK) | Vicarious Liability
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Between 2013 and 2016 Patrick Sadd was Counsel to the Independent Jersey Care Inquiry looking into the care of children in the island since 1945. The Inquiry followed the world-wide publicity the Island attracted during the abuse investigation into the island’s children’s home at Haut de La Garenne. He was instructed on the basis of his extensive experience in child abuse claims going back to 2001.The Inquiry finished taking evidence in June 2016. The report is due for publication in March 2017.