What can football clubs do when medical treatment given to a player by a third party goes wrong?
Published 30 September 2019 By: Oonagh Webster
In recent years, football Clubs and their medical teams have seen a trend towards players seeking medical or holistic treatments from third party practitioners in circumstances where either the treatment provider is not approved by the Club or the treatment takes place without the knowledge of the Club.
This article will set out the nature of the issue, the potential impact on the Club and possible factors for Clubs to consider to afford themselves some protection.
Scope of the Issue
Over the past year, the author’s firm have been approached by a number of football Clubs who are concerned about medical and holistic treatments being provided to their players by unapproved third party practitioners (Third Parties) such as physiotherapists, personal trainers and masseurs. The most common scenarios are as follows:
Players are receiving treatment outside of their Clubs from Third Parties and in circumstances where the Club and the Club’s medical team are not aware of the treatment.
Players have invited Third Parties to attend the Club premises and the advice or treatment given by the Third Party for the management of the player conflicts with that given by the Club’s own medical team. For example there is a disagreement over the correct recovery plan for a player following an injury or a difference of opinion over whether the player is fit to return to play.
The player and the Club’s medical team agree on the appropriate treatment required but there is a difference of opinion over which medical practitioner should provide the treatment. For example we are aware of scenarios where a player requires an operation but the Club doctors and the player disagree over the identity of the orthopaedic surgeon to carry out the operation.
A topical example is that of Leroy Sane, who is choosing to undergo knee surgery in Austria by Dr Christian Fink, rather than be treated by Dr Ramon Cugat in Barcelona, who is Manchester City’s preferred orthopaedic surgeon.1
These scenarios are extremely difficult to manage as of course the player has autonomy and cannot be compelled to undergo treatment he does not consent to, however on the other hand the Club has a significant financial interest in the player, his value as an asset and his ability to continue to play football at a professional level for the Club. It is therefore understandable that a Club will wish to “vet” and approve any Third Party providing treatment to a player. In the case of an orthopaedic surgeon, for example, the Club’s doctors will want to know the surgeon’s success rates and infection rates and be able to liaise with the surgeon as to the player’s aftercare and management of his recovery. Unfortunately we have been advised that sometimes the player insists on undergoing surgery with a surgeon who will not communicate with the Club’s medical team to provide the required information and who the Club therefore cannot endorse to carry out the surgery.
Impact on the Club
In reality the majority of treatment provided by a Third Party to a player is unlikely to result in long or short term injury, albeit the managerial issues of dealing with disputes between players and their Clubs over treatment should not be underestimated. However, where the Third Party is, for example, a physiotherapist or an orthopaedic surgeon then the consequences of sub-standard treatment can be far more serious, which is why these classes of practitioners should be thoroughly vetted to ensure they are appropriately qualified to reduce the risk of an injury to the player.
The “worst case scenario” for a Club is that a player receives sub-standard or negligent treatment from a Third Party leaving the player unable to play for the Club, either temporarily or permanently. This could result in the Club losing millions of pounds including the loss of the value of the player’s contract, the cost of replacing him and lost wages. Even if the Club can prove that the treatment provided by the Third Party was negligent, they are not entitled to an indemnity from the Third Party in respect of their losses as in most circumstances the Third Party will not owe the Club a duty of care in tort or contract.2
Whilst most prudent Clubs will have some form of Asset Protection Insurance that may pay out in the event that a player is unable to continue their professional career as a footballer for the Club, there will inevitably be a shortfall or uninsured element that will not be covered and that the Club will have to bear themselves as they cannot seek recovery from the Third Party. Even if the player is only temporarily unable to play, the Club will find themselves responsible for the player’s wages for significant periods, without deriving any benefit from the player during this period. While it is possible to obtain insurance for “temporary total disablement” or “payroll protection”, this is less commonly obtained and will often exclude pre-existing injuries etc.
As an aside, any insurance that the Club holds may contain conditions related to the treatment to be provided to players that could be invalidated if, for example, the Club’s medical team have not signed off on the treatment or the identity of the practitioner. Therefore there is also a risk that the Club could lose whatever insurance cover they do have if the Third Party practitioner providing treatment is not suitably qualified.
Case Example – West Brom v El-Safty
The case of West Bromwich Albion Football Club Ltd v El-Safty3 perfectly demonstrates and confirms that where a player receives negligent treatment or advice, the practitioner is not liable to the Club as there is insufficient proximity between the practitioner and the Club for a duty of care to arise.
In the El-Safty case the Club’s physiotherapist referred the Player to the Surgeon and attended the appointment with him. The Surgeon diagnosed an injury to the Player’s right posterior cruciate ligament and recommended reconstructive surgery. The Player and the physiotherapist discussed and adopted the recommendation. The surgery was paid for by the Club’s medical insurance providers. Unfortunately after undergoing the surgery the Player was unable to play professional football again and it was accepted that the Surgeon’s recommendation for surgery was negligent and that the injury should have been treated conservatively.
The Club then attempted to sue the Surgeon for their losses in a separate action, arguing that the Surgeon owed duties to the Club both in contract and in tort. Both at first instance6 and on appeal7 the Court held that there was no direct or implied contract between the Surgeon and the Club and the Surgeon owed no duty of care in tort in respect of any foreseeable economic loss to the Club resulting from the negligent treatment.
Mr Justice Royce in his judgement at first instance found that the physiotherapist had referred the Player to the Surgeon in his role as health professional, rather than with an intention to create a contract between the Club and the Surgeon. Therefore there was no intention on the part of the Club to create legal relations directly with the Surgeon.
The loss should be reasonably foreseeable;
There should be sufficient proximity between the parties to the claim;
It is fair, just and reasonable to impose the duty of care.
In finding that the Surgeon owed the Club no duty of care, Mr Justice Royce reasoned that there was not sufficient proximity between the Surgeon and the Club. Whilst the Surgeon of course knew that the Player was a valuable asset to the Club, he was not privy to specific details, such as the exact value of the Player or the terms of his contract. Mr Justice Royce pointed out that any surgeon treating a patient from a fairly substantial company under a company health insurance policy will be aware that the patient has a value to the company, however this would not ordinarily give rise to a duty of care owed by the surgeon to the company.
Finally Mr Justice Royce concluded that if there was sufficient proximity between the Surgeon and the Club to give rise to a duty of care it would not be fair, just or reasonable to impose such a duty. He briefly noted that the Surgeon would presumably have to try and ascertain the Player’s value and try and limit his liability in some way, which it would be unreasonable to expect the Surgeon to do. In the Court of Appeal, Lord Justice Rix went further and stressed that the Surgeon did not assume a responsibility to advise the Club and stated his primary concern ought to be the Player’s well-being and not the Club’s financial circumstances. If, Lord Justice Rix stated, the Club had wanted the Surgeon’s advice for the purposes of their own interests “it could have made that plain to him. He would then have been put in a position where he could choose to charge for that advice and the risks of giving it, and/or of disclaiming liability”.9
This case shows that the basic premise is that a Third Party providing treatment to a football player is merely providing medical care to a private patient and does not owe a duty of care to a third party (i.e. the Club) not to cause financial loss.
Considerations for the Club
As already outlined, there is a clear risk to a Club if a player undergoes sub-standard or negligent treatment from a Third Party and is then injured and unable to play for any length of time. The likelihood of this happening will be reduced if the player and the Club can adopt a collaborative approach to the player’s treatment plans and ensure that any significant surgery etc is performed by a jointly chosen, suitably qualified practitioner. Unfortunately this is not always achievable and there is not a clear cut solution to the issue. Some factors that Clubs may find it useful to consider are set out below.
The Standard Form Premier League Contract entered into between players and Clubs in the Premier League does contain various clauses that a Club could seek to enforce to prevent a player from undergoing controversial or unapproved treatment. Notably one clause states that players agree they will not (except in the case of emergency) arrange or undergo any medical treatment without first giving their Club proper details of the proposed treatment and physician/surgeon and requesting the Club’s consent. The same clause states the Club is not to unreasonably withhold consent.
The difficulty of enforcing this clause is that most Clubs start from the premise “it is your body”. Further the Club will most likely not wish to alienate one of their valuable assets and realistically they are unlikely to want to threaten to terminate the contract and lose their player, attracting significant press coverage and also alienating team mates. There is also a risk that the player will undergo treatment without the Club’s knowledge and therefore the Club will lose any control over the decision making process.
One possibility is for the schedule/annex to the Standard Form Premier League Contract (which can be amplified) to include further detail about what information regarding the proposed treatment and physician/surgeon are required and this reiterated to players upon joining the Club. For example it could be made clear that where an orthopaedic surgery is proposed that as a minimum the Club’s medical team will require details of the surgeon’s success rates, infection rates and insurance cover. This may help prevent internal disputes over whether or not a proposed treatment is reasonable.
As touched on above Clubs can, and often do, take out Asset Protection Insurance that usually responds when a player is unable to continue to fulfil their professional obligations to a Club due to accidental death or permanent total disablement or where a player is temporarily disabled. Coverage for these policies is arbitrary and Clubs can choose the sum for which to insure a player, as long as the figure is reasonable and can be justified. Careful attention should be paid to the wording of the policy, as policies can specifically exclude cover when the injury to a player is caused by negligent medical treatment or arising from treatment for an existing injury etc.
To protect against uninsured losses Clubs should consider giving careful thought to the wording of their policies and the level of coverage insured and calculate such with reference to the player’s contract or transfer value. The flipside could mean an increased premium, however this is likely to pay for itself in multiples if a claim under the policy becomes necessary. Interestingly the Court of Appeal in the El-Safty matter stated that it seems more reasonable to “expect the Club to insure against suffering the financial loss of the kind claimed against Mr El-Safty than to expect him [the surgeon] to insure against additional loss of this kind suffered by someone other than the patient”.10 This perhaps shows the attitude that Courts will take in the future to any further attempts to hold a practitioner liable to a Club for medical treatment provided to a player.
Of course even with an increased level of coverage there may still be a shortfall between the level of cover and the losses sustained by a Club, however anything that can be done to close this gap will be beneficial to the Club.
Direct Contract with the Third Party
A final option is to try and establish a direct contractual relationship between the Club and any Third Party providing treatment to a player. For example, if a player has a physiotherapist or personal trainer who regularly provides services/treatment to the player, the Club may wish to consider entering into a contract for the provision or services with the physiotherapist/personal trainer. If a contract is established then the Club gains an element of control over the Third Party and can ensure they have adequate qualifications/insurance etc. Furthermore if there is a suggestion of negligence on the part of the Third Party causing harm to the player and subsequent losses to the Club then it will be much easier for the Club to establish a duty owed by the Third Party and attempt to cause the Third Party to indemnify them for any financial losses. The cost of the treatments is unlikely to be an issue for any top level Club.
Although this option may seem the most attractive to a Club it does have a host of difficulties of its own. It is clear from the El-Safty case that any contract between a Club and a Third Party would have to go beyond a simple contract for the payment of fees in order for the Third Party to be held liable to a Club for losses caused by negligent treatment to a player. It would therefore need to include an element of tendering formal advice to the Club or reporting the Club on proposed treatment/surgery. Any Third Party could quite simply refuse to enter into such a contract, refuse to give formal advice to the Club or disclaim liability.
Furthermore, even if a Third Party did agree to enter into a direct contract with a Club and the Club were able to successfully establish a duty owed by the Third Party to a Club, there is no guarantee that the Third Party would have appropriate insurance cover that would respond to the claim or have a limit of indemnity sufficient to cover the Club’s losses.
Finally, the Third Party may be in breach of various ethical codes of practice, including General Medical Council Guidance11, if they were to enter into such a contract as to do so may place them in a position where they have a conflict of interest between the interests of the player and the interests of the Club.
The issue of players seeking additional treatments outside of their Clubs from unapproved Third Parties is difficult to resolve and likely to continue, particularly in light of players’ increased salaries and pressures to perform.
Whilst there is no fool proof solution, Clubs would be advised to ensure they are adequately insured for their own losses in the event that a player is injured following negligent medical treatment and fully understand the terms and conditions of their insurance so that these are not breached.
To try and prevent players seeking treatment from unapproved Third Parties we would encourage a collaborative approach between the players and Clubs’ medical departments with clear guidelines set down from the start to ensure players understand what is expected of them. Whilst this article has considered the issues from a Club’s perspective, any player of course has a vested interest in remaining fit to play and this shared interest should encourage collaboration.
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Oonagh is experienced in handling the defence of player on player claims for Premier League clubs/players/their public liability insurers, advising Premier League Clubs on a variety of contractual issues, and advises Premier League club doctors both as to their obligations to parent club and their players/players’ families.