The role and extent of criminal sanctions in sport
Published 15 July 2019 By: Gavin Brogan
The Swiss Federal Court recently upheld the criminal conviction of an amateur footballer following a tackle he made during a game of football, which resulted in injury to an opposing player. The fact that a player could receive a criminal sentence for making a tackle in a football game may well be surprising.
This article considers the relevant law in this area and when a tackle in football becomes criminal, from a UK perspective. Specifically, it looks at:
Facts of the Swiss case
The difference between on the ball offences and off the ball offences
Consent, UK criminal law and football cases
Principles from R v Brown and R v Bradshaw
The footballing case of R v Barnes
The approach post Barnes
Lord Woolf’s guidance on the concurrent role of sports disciplinary bodies and civil proceedings
Agreement on the handling of incidents falling under both criminal and football regulatory jurisdiction
Facts of the Swiss case
The incident occurred during an amateur football game in the canton of Fribourg, Switzerland. A player was in possession of the ball when he was tackled by the accused. The tackle was made at ankle height and with an outstretched leg. As a result of the tackle, the player in possession of the ball suffered a broken ankle. A foul was deemed to have been committed and the accused received a yellow card. The referee considered that the accused had committed a dangerous tackle, but without intent.
The accused was subsequently charged with the criminal offence of grievous bodily harm. The first instance court in Fribourg held that the accused had made the tackle without consideration to the danger, risks and consequences of the tackle. The court convicted the accused and imposed a criminal sentence of 40 hours community service. The accused appealed his conviction to the Swiss Federal Court. They dismissed the appeal and upheld the criminal conviction.1
The upholding of the criminal conviction by the Swiss Federal Court has reignited the debate among international sports lawyers and academics as to whether the criminal courts are the appropriate forum for players who have caused injury to another player during the course of a football game.
On the ball offences and off the ball offences
This debate usually makes a distinction between "on the ball offences" and "off the ball offences".
On the ball offences are generally considered to be injury causing contacts between players, which are outside the laws of the game, and which have been committed by one player against another when the ball is in play. For example, where a player has committed a reckless tackle against an opponent.
In contrast, off the ball offences are considered to be injury causing contacts between players, which are outside the laws of the game, and which have been committed by one player against another when the ball is not in play. For example, where a player headbutts, punches or kicks another player off the ball.
In the UK, the majority of criminal convictions, which have arisen from injury causing player contacts in a football game, have related to off the ball offences.
An infamous example of an off the ball offence in the UK, which resulted in criminal proceedings being brought against a football player, is that of Duncan Ferguson, the former Glasgow Rangers, Everton and Newcastle United footballer. In a professional football game in 1994, while playing for Glasgow Rangers, Ferguson headbutted an opposing player off the ball. He received a yellow card from the referee but was subsequently charged with assault and criminal proceedings were brought against him. Following trial, Ferguson was convicted and sentenced to 3 months imprisonment.
The comments of one of Scotland’s most senior judges, the Lord Justice Clerk, who presided over Ferguson’s unsuccessful appeal, provide an indication of the approach of the Scottish courts to off the ball offences in football:
"The court has no wish to intervene in physical contact sport such as professional football…But when acts are done which go well beyond what can be regarded as normal physical contact and an assault is committed, the court has a duty to condemn and punish such conduct. It has to be made clear both to players and to the public that such criminal acts cannot be tolerated on the field of play anymore than they can be tolerated in any other place in the country. A footballer who assaults another player on the football field is not entitled to expect leniency from the court just because the incident occurred in the course of a football match."2
The approach of the courts in England & Wales to off the ball offences is similar to that of Scotland. The courts in England & Wales have held that sport is not a "licence for thuggery"3 and that "unlawful violence on the football field needed discouraging".4
In light of the approach of the UK courts to off the ball offences, a player who commits an off the ball offence in the UK, such as a headbutt, punch or kick against an opponent would be at significant risk of facing criminal prosecution. For example, the current Sky Sports presenter and analyst, Chris Kamara, who was playing as a professional footballer for Swindon Town at the time, was prosecuted for assault when he punched an opposing player in the tunnel after the final whistle.5 The current Charlton Athletic manager, Lee Bowyer, was also prosecuted following an off the ball fight with his then Newcastle team mate, Kieron Dyer, during an English Premier League game against Aston Villa.6
The position in respect of players who commit on the ball offences in the UK, such as the one that occurred in the recent Swiss case, is not as clear.
In contrast, the decision of the Swiss Federal Court in the current case appears consistent with its previous approach to on the field offences in other sports related cases. For example, in October 2007, the Swiss Federal Court found a US ice hockey player, Kevin Miller, criminally liable for the injury sustained to an opposing hockey player, Andrew McKim, during a professional ice hockey match in Switzerland.7 In that case, shortly after making a shot, McKim was checked from behind by Miller, causing McKim to fall forwards and hit his head on the ice. Miller was dismissed by the referee for the foul. As a result of the injuries sustained by McKim he never played professional hockey again. Miller was convicted of assault and negligent bodily injury. The decision of the Swiss Federal Court in the Miller case affirmed their previous decision in another ice hockey case, where Misko Antisin, a professional ice hockey player, was convicted of reckless bodily harm as a result of tripping an opponent during an ice hockey game in Switzerland which resulted in the opposing player rupturing their cruciate ligament.8
Consent, Criminal Law and Football
When assessing the application of criminal law to on the ball offences in football, the role of consent to injury and its operation as a defence to criminal proceedings requires to be considered. The landmark case dealing with consent to injury and its recognition as a defence to the infliction of injury to another person is the English criminal case of R v Brown  1 A.C. 2129.
In that case, the House of Lords held that the general rule is that an individual cannot consent to the infliction of actual bodily harm or worse. As a result, a person who had caused actual bodily harm or worse to another person would not be able to rely on a defence that the other person had consented to the harm.
The application of this general rule would clearly have significant consequences in respect of the participation of players in a football match. Football is a contact sport and therefore there is a foreseeable risk of injury to players when playing such a contact sport. Even when the players are playing within the laws of the game, contact between the players could result in injury. For example, a legitimate tackle or shoulder challenge made by a player during a game of football, both of which are permitted within the laws of the game, could result in injury to a player. If the general rule established in Brown was applied to football, players would be at risk of criminal prosecution every time that another player was injured following contact between the two players, notwithstanding that such contact was within the laws of the game of football.
However, the House of Lords acknowledged the "sporting exception" to the general rule which prevented a person consenting to injury:
"Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Violent sports including boxing are lawful activities…. Some sports, such as the various codes of football, have deliberate bodily contact as an essential element. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm." 10
The passage above confirms that in a contact sport like football, an exception to the general rule preventing an individual from consenting to injury, is available. The exception provides that by participating in the game itself, players are deemed to have given "implied consent" to injuries resulting from contact with other players. As such, in football, a player who causes injury to another player during the course of the game would be able to seek to rely on the other player’s implied consent to injury as a defence to the infliction of the bodily harm.
Despite the court’s confirmation of a sporting exception to the general rule, which prevented individuals consenting to the infliction of injury, the extent of the application of the sporting exception in football was unclear.
For example, what are the parameters of a player’s implied consent to injury when participating in a game of football? Does the mere participation in a game of football result in a player impliedly consenting to injuries arising from any contact made by another player? Is there a point where the law considers that a player cannot be held to have impliedly consented to the injury causing contact during the game, such that the player who has caused the injury would become subject to criminal proceedings and would be unable to rely on the defence of consent?
These were questions addressed by the court in Brown, where it was stated:
"What we need to know is whether, notwithstanding the recipient's implied consent, there comes a point at which it is too severe for the law to tolerate….the law will not license brutality under the name of sport, one of the very few reported indications of the point at which tolerable harm becomes intolerable violence is in the direction to the jury given by Bramwell B. in Bradshaw (that the act would be unlawful if intended to cause "serious hurt."11
The case referred to above by Brown, where consideration was given to the point where a player could not be deemed to have impliedly consented to the injury causing contact, was the English one of R v Bradshaw (1878) 14 Cox CC 83. In that case, a football player, when seeking to make a challenge for the ball (i.e. an on the ball offence), barged an opposing player resulting in fatal injury to the opposing player.
The presiding judge in Bradshaw sought to provide some direction to the jury to assist them in deciding whether a football player, when seeking to make a challenge for the ball during the course of the game, and who had barged an opposing player resulting in injury was guilty of a criminal assault. The judge directed that:
" No rules of any game whatever can make that lawful which is unlawful by the law of the land….[If] a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer…that he is not acting in a manner which he knows will be likely to be productive of death or injury. But…if the [defendant] intended to cause serious injury to the deceased, or…was indifferent or reckless as to whether he would produce serious injury or not, then the act would be unlawful."12
This indicates that where a player is acting outside the laws of the game, with either an intention to cause serious injury to another player or being reckless as to whether serious injury would occur, then that player would be guilty of a criminal assault.
Following Bradshaw it became generally accepted that even where a player had committed an act that was outside the laws of the game (e.g. a late tackle) but within the "playing culture" of the sport (i.e. the committing of a foul is part of the game of football in that the laws of the game make account for the occurrence of such fouls ) unless that player had intended to cause injury or had been reckless as to whether injury would be caused, then the act would not justify the interference of the criminal courts.
In light of Bradshaw and Brown, where a player commits an on the ball offence and they had intended to cause harm to the other player or had been reckless in committing the offence which caused the harm, the injured player will not be deemed to have consented to such injury. The player committing the injury causing offence would be guilty of a criminal assault as they would be unable to rely on the sporting exception of consent to injury.
In the recent Swiss case, the Swiss Federal Court held that the normal assumed consent of the injured player to the accepted risks associated with playing football did not apply to the injury following the reckless tackle. Therefore, the approach of the Swiss Federal Court, to the limits of a player's implied consent to injury in a football game accords with the approach advanced in Brown and Bradshaw that there will be occasions when an injury causing act occurs within the game and given the nature of that act, the injured player will not be deemed to have impliedly consented to an injury being caused from such an act.
The law therefore applies a threshold in relation to how far a player’s implied consent to injury during a game of football will operate as a defence to a player who causes injury to another player, as a result of an on the ball offence. This threshold ensures that players are able to play the game without fear that every mistimed tackle or other contravention of the rules of the game, which results in injury to another player, will be classed as being criminal conduct. On the other side of the coin, this threshold ensures that a player’s participation in a game of football does not provide a blanket exception from criminal prosecution of those players who intentionally or recklessly inflict harm on another player during the course of the game.
Despite the decisions of Brown and Bradshaw, there still remained a lack of clarity in relation to the circumstances in which an on the ball offence, which was outside the laws of the game, would cross the threshold resulting in the act being criminal.
It was not until the English criminal Court of Appeal case, R v Barnes (Mark)  1 W.L.R. 910, that some additional guidance was provided in relation to when an on the ball offence by a player in a game of football would be considered criminal.
Facts of Barnes
Following an amateur football match in December 2002, Mark Barnes, faced criminal prosecution as a result of what was described as a "crushing tackle, which was late, unnecessary, reckless and high up on the legs" of an opposing player. Evidence was led that shortly after an earlier incident in the game, involving the opposing player and Barnes, the opposing player took a shot from within the penalty area and scored. After the shot had been taken, Barnes made a sliding tackle, from behind, making contact with the opposing player’s right ankle resulting in serious injury. The referee sent Barnes off for violent conduct. After the challenge, Barnes was heard to say to the opposing player, words to the effect " have that."13
Barnes’ position at trial was that the tackle had been hard, but fair, and that any injury caused had been accidental.
At first instance, Barnes was convicted of unlawfully and maliciously inflicting grievous bodily harm. However, he appealed his conviction on the basis that the trial judge had misdirected the jury by failing to make it clear that there could be breaches, even serious breaches, of the rules of the game of football without there necessarily being the commission of a criminal offence.
The Court of Appeal agreed that the trial judge had failed to direct the jury correctly. As a result, Barnes won his appeal and his conviction was quashed.
The Court of Appeal held that:
"…it should have been pointed out to the jury that even if the offending contact was a foul, it was still necessary for them to determine whether it could be anticipated in a normal game of football or was it something quite outside what could be expected to occur in the course of a football game. The summing–up should also have made it clear that even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal conduct."14
The direction which the jury ought to have been given in Barnes’ original trial was consistent with how the law had developed following Bradshaw, in that simply because an injury causing act was outside the rules of the game (i.e. that it was a foul), it did not mean that the act was criminal.
The significance of Barnes is that it provided the first express acceptance in English law of the concept of the “playing culture” of the sport whereby contacts between players, which were outside of the laws of the game (i.e. fouls), could still be consented to by players as being part of the normal participation of sport and not necessarily criminal.
The Swiss courts also appear to accept the “playing culture” principle advanced in Barnes. In the current Swiss case, the Court held that the issue to be considered was:
“ …whether the breach of the rule of play in question was sufficiently serious to exclude an implied consent of the player concerning the risk of bodily injury inherent in the practice of football. “15
The Swiss Court also held that:
“the Respondent, by participating in the game, tacitly accepted the risks inherent in the practice of football, which does not cover the dangerous behaviour adopted by other players. In other words, regardless of the question of sanction (i.e. sending off or caution) provided by the rules of the game, it can not be considered that players agree to suffer injuries caused by dangerous behaviour, that may cause injury, to other players.” 16
The passages above from the Swiss case, appear consistent with the UK courts approach to the “playing culture” of the sport. The passages reveal that the Swiss Courts also consider that not every contact between sportspersons, which results in injury, and which has arisen following an on the ball offence will justify criminal prosecution.
As well as providing the first express acceptance in English law of the concept of the “playing culture” of the sport, the Court of Appeal in Barnes also provided authoritative guidance in relation to determining whether the conduct of a football player could be considered criminal or not. The court stated that when considering the criminality of conduct on the field, the following factors, would be relevant:
the type of sport (i.e. the extent of contact which is permitted within the rules of the sport);
the level at which it is played (i.e. the level of contact expected in a professional or amateur game would be greater than that expected in an informal game of football between friends or work colleagues);
the nature of the act (whether the act was part of the game, such as a tackle);
the degree of force used (i.e. was the force used during the act excessive and dangerous);
the extent of the risk of injury; and
the state of mind of the defendant (i.e the mens rea of the player committing the act – did the player intend to cause injury to the opposing player or were they reckless or indifferent to whether injury was caused?) 17
When applying the facts of the recent Swiss case to the factors listed in Barnes above, there is certainly an argument that the same type of tackle, which the Swiss player had made, could also be considered to be criminal in the UK.
However, whether such a tackle, as the type undertaken by the Swiss player, would be deemed to be "sufficiently grave" to warrant an actual criminal prosecution in the UK, is debateable. This is due to the approach which has been adopted by the prosecuting bodies in the UK post Barnes.
The approach post Barnes
As well as setting out the relevant factors which required to be taken into account when considering the criminality of acts on the football field, Lord Woolf in Barnes, also gave consideration to the approach the courts ought to take in relation to such acts.
He suggested that as organised sports, such as football, had their own disciplinary bodies who enforced rules and standards of conduct within the game, the starting point was that there was not only any need for criminal proceedings, but that it was undesirable that there should be any such criminal proceedings. Further, Lord Woolf highlighted that there was an alternative remedy available to injured players, a civil claim for damages. As a result, the Court stated that criminal prosecutions should be reserved for those situations where the conduct was "sufficiently grave" to be categorised as criminal.
Lord Woolf appeared to therefore favour a hands-off approach to on the ball offences in football, where those acts could be properly and seriously dealt with by the disciplinary body organising the sport (e.g. the English Football Association) via fines and/or suspensions.
The suggested approach of Lord Woolf appears to have been applied by the Crown Prosecution Service (CPS) when dealing with on the ball offences in football. In October 2015, the CPS, the National Police Lead for football on behalf of the National Police Chiefs’ Council and the respective football associations of England & Wales entered into an agreement18 concerning the issue of "concurrent jurisdiction" where a criminal offence is alleged to have been committed by a player during a game of football (the Agreement).
Within the Agreement, with a clear reference to Lord Woolf’s suggested approach, it is recorded that:
" It is generally desirable for the [football associations] to deal exclusively with all football regulatory matters and sanction their Participants appropriately for breaches of their Rules and Regulations. There will, however, be instances where the breach is so serious that it will also be appropriate for a criminal investigation or prosecution to take place….In respect of incidents on the field of play which cause injury, prosecutions should be reserved for situations where the conduct is considered sufficiently grave to be properly categorised as criminal."
The Agreement also provides the following example as an illustration of the approach to be taken to on the ball offences in football:
" An alleged incident which takes place in or around the action in the game (an ‘on the ball’ incident) is more likely to be dealt with adequately by the FA. However, where it is apparent that the player involved in an ‘on the ball’ incident clearly intended to harm or injure another player, and serious harm or injury is caused, a criminal investigation may be required."
The approach of the Procurator Fiscal in Scotland (i.e. the Scottish Prosecution Service), to on the ball offences in football, is similar to that of the CPS. In March 2011, the Lord Advocate (Scotland’s chief legal officer for both civil and criminal matters) issued guidelines to Police Chief Constables in respect of incidents during sporting events, which stated:
" The Lord Advocate is firmly of the view that all those involved in the administration, refereeing and playing of sports have the initial and the major responsibilities to avoid and in any event to deal with excessive violence or serious disorderly conduct on the part of players.
The Lord Advocate wishes the police to (i) investigate and, where appropriate, report to the Procurator Fiscal incidents where the violence used by a participant goes well beyond that which would be expected to occur during the normal run of play and that which the rules of the sport concerned are designed to regulate. In deciding which incidents to investigate the police should pay particular regard to incidents where the violence or disorderly behaviour has occurred after the whistle has been blown and whilst the ball is dead; and (ii) to report on what sanctions, if any, the club or sporting authority concerned is liable to take or has already taken to discipline and punish those involved for their conduct. That information may be relevant to any decisions to be taken by the Procurator Fiscal."
It is clear that in the UK, the favoured approach in relation to on the ball offences, is to allow them to be dealt with appropriately by the relevant disciplinary procedures of the relevant football governing body. Perhaps this is the reason why there have been so few criminal prosecutions in relation to on the ball offences in the UK since Barnes.
However, this is not to say that there have not been any prosecutions brought against footballers in the UK for on the ball offences post Barnes. Indeed, in 2010, an amateur footballer, Mark Chapman was convicted at Warwick Crown Court of grievous bodily harm and sentenced to 6 months imprisonment following a tackle he had made during an amateur football game.19 In that case, an opposing player was shadowing the ball out of play when Chapman used a stamping motion, with studs showing, on the back of the opposing player’s leg, resulting in the opposing player suffering a broken leg. The evidence of the match referee was that the actions of Chapman were deliberate with an intent to cause injury. The facts and circumstances of Chapman are not too dissimilar to those in Barnes. Therefore, one might legitimately question why Chapman was convicted and Barnes was not. This appears to be due to Chapman pleading guilty to the charges brought against him. Given the approach of the court in Barnes, had Chapman not pled guilty, there may well have been reasonable prospects of him evading a conviction.
Further, in 2015, an amateur footballer, Nathaniel James Kerr, was convicted of assault by Manchester Crown Court following a tackle he made during an amateur football match.20 The circumstances point to the contact with the opposing player being a deliberate assault. Kerr is reported to have ran towards the opposing player, jumped into the air and stamped on the opposing player’s outstretched leg.
Also, in 2016, another amateur footballer, Nicholas Williams, received a 6 month prison sentence from Caernarfon County Court in Wales.21 The referee in that case described the incident as being the worst he had ever seen in his time as a referee and that Williams had made no attempt to kick the ball. The Court heard that prior to the incident, Kerr and the opposing player had been involved in a 50/50 tackle. The judge recorded that following the previous tackle, Williams had harboured a grudge against the opposing player before carrying out an astonishing and deliberate flying tackle.
The conduct of Kerr and Williams would almost certainly meet Lord Woolf’s test of being “sufficiently grave” acts which would merit criminal proceedings being brought. Both of those cases involved, what appears to have been, deliberate acts of harm and are therefore rare examples of successful criminal prosecutions post Barnes for on the ball offences.
Another reason for the hands-off approach suggested by Lord Woolf in Barnes was the alternative civil remedy available to injured players whereby they could seek to claim damages as a result of the negligent act of the other player. Civil reparation law has developed significantly in the UK both pre and post Barnes, such that it is considered to be a more appropriate forum for the injured player than the criminal courts.22
The recent decision of the Swiss Federal Court has certainly reignited the debate as to the appropriate forum for injury causing on the ball offences within football.
Following the above analysis, it is evident that a player committing an injury causing tackle in a football match in the UK could still fall foul of the criminal law. However, given the approach of the prosecution agencies in the UK to on the ball offences in football, it would be surprising if a criminal prosecution, for the type of tackle undertaken in the recent Swiss case (i.e. dangerous but without intent), was brought in the UK.
Instead, a player who made such a tackle in the UK would likely be dealt with by the disciplinary board of the relevant UK football association as opposed to any criminal court.
As for the injured player, they would have the option of pursuing a civil claim for damages in relation to the negligent act of the opposing player or making an application for damages to the UK Criminal Injuries Compensation Scheme, which is not dependent on a criminal conviction of the opposing player.
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Partner, Digby Brown
Gavin is a Partner at one of Scotland's largest specialist litigation firms.
He undertook a commercial traineeship at Dentons in Glasgow and Edinburgh before moving to his current firm where he specialises in reparation litigation.
Gavin maintains an interest in sports related legal matters and is currently attending the Global Masters in International Sports Law from Instituto Superior de Derecho y Economia (ISDE), in Madrid.
Gavin is a keen amateur footballer. During his time at Glasgow University, he played for the Glasgow University amateur football team that qualified for the professional Scottish Cup.
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