Who shoulders the blame? An analysis of vicarious liability in the sports industry
Published 03 October 2016 By: Philip Hutchinson
Vicarious liability is a long-standing, common law principle of strict, no fault liability for wrongs committed by another person. It occurs predominantly in employment relationships whereby the employer is held to be liable for the wrongdoing of its employee provided that there is a sufficiently close connection between those wrongs and the employee’s employment1. Accordingly, these “wrongs” are tortious acts which when committed by a “tortfeasor” (i.e. an employee) will render the employer liable provided that there is a sufficiently close connection between the act and what the employee was employed to do. The fact that the employer itself has not committed any wrong is irrelevant.
Whilst it has been argued that this doctrine is somewhat harsh on employers, its imposition in English law is policy driven on the basis that it is the employers, rather than employees, who have the fiscal means and deep pockets to compensate the losses suffered by an individual following a wrongful act committed by an employee.
In Majrowski v Guy’s and St Thomas NHS Trust2 , Lord Nicholls identified that:
“..all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is “fair”, because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees3”
Ultimately, it is the employer who is able to spread the losses incurred when making any damages payments, either through its liability insurance, price increases or otherwise4. Furthermore, imposing strict liability on employers encourages them to maintain standards of “good practice” by their employees5.
Recent developments in the doctrine of vicarious liability following the Supreme Court cases of Mohamud v WM Morrison Supermarkets plc6 (“Mohamud”) and Cox v Ministry of Justice7 (“Cox”) have however widened the potential liability of employers for the actions of their employees. Accordingly, this article explains the developments and then analyses the potential effects to employers in the sports industry (such as clubs and governing bodies) using some conventional sporting situations and scenarios. Specifically we will look at:
- The development of the vicarious liability doctrine
- The cases of Mohamud and Cox – a shift in the doctrine
- Potential consequences for employers in the sports industry
- The training ground
- Sexual misconduct
- What are the limits of a “practical joke”?
- Comment and tips for employers
The development of the doctrine
For vicarious liability to arise, a two-stage test must first be satisfied.
- Firstly, there must be a relationship between the primary wrongdoer and the individual alleged to be liable which is capable of giving rise to vicarious liability8. For example, a footballer under contract with a football club will always satisfy the first limb of this test by nature of this employment relationship. Conversely, an independent contractor with no employment contract who is engaged to work in a club’s marketing team for a fixed period is unlikely to fulfil this requirement, provided they undertake the work for which they were engaged to do9.
- The second stage of the test is that a connection must exist between the employment and the wrongful act or omission that is so close that the act can be fairly and properly regarded as being within the scope of the employment10 or that it would be fair and just to impose liability. In Dubai Aluminium Co Ltd v Salaam11, Lord Nicholls noted that the assessment of whether there is a “sufficiently close connection” requires a value judgment. This does not simply entail asking whether it is just and reasonable to impose liability; the issue in hand still requires assessment in terms of the closeness and proximity of the connection. As emphasised in Gravil v Redruth Rugby Football Club Ltd12, each case must be examined on its own facts in order to truly establish whether the tortious act is so closely connected with the employment that it would be fair to hold the employer vicariously liable13. Whilst employers have historically argued that any tortious acts committed whilst an employee was deemed to be on a “frolic of his own” should not render the employer vicariously liable, the effectiveness of such a defence has decreased in recent years with the courts placing a larger emphasis on the creation or material increase of risk attributable to the employer14.
In establishing such a close connection, it is crucial to ascertain what the employee was actually employed to do or whether it can be said that the act or omission was merely a personal act15. Acts of passion or resentment16 or indeed personal spite17 committed by an employee are unlikely to render an employer vicariously liable. For example, a steward employed by a football club who is working at a football match who assaults a fellow steward during the course of a game out of nothing other than purely personal dislike is not likely to render his employer vicariously liable for his actions. Conversely however, in a similar scenario where a senior steward who has the responsibility of managing a small team instructs one of his team to undertake a task and is then subsequently attacked by the individual he has given instructions to, the employer would likely be vicariously liable for the acts of the disgruntled employee. The vital distinction between these two examples is the personalised element of the assault. In the first example, the assault is based on a personal dislike and has no connection to the employee’s job. In the second, the assault stems from the employee taking instructions in the course of his employment and in doing what he is employed to do.
The cases of Mohamud and Cox – a shift in the doctrine
The recent Supreme Court cases of Mohamud v Morrison Supermarkets18 and Cox v Ministry of Justice19 demonstrate a shift in the court’s approach to both limbs of the two stage vicarious liability test as set out above. Consequently, these landmark decisions arguably establish precedents that could have wider impacts on sporting bodies.
The Supreme Court case of Cox expanded the application of the first limb of the test. In this case the claimant, Mrs Cox, was employed by HM Prison Swansea. In her role, she supervised both civilian staff and prisoners working in the kitchen. Whilst at work, Mrs Cox suffered an injury when a prisoner dropped a sack of rice on her back. Mrs Cox subsequently brought a claim against the Ministry of Justice (MoJ).
The Supreme Court held that the relationship between the MoJ and the prisoner was sufficiently close to satisfy stage one of the test for vicarious liability. Whilst not strictly an employer-employee relationship due to the prisoner status of the tortfeasor, the court was willing to hold that vicarious liability can also be established in “employment-like” relationships. Crucially, the court gave weight to the fact that harm was done by an individual who carried on activities as an integral part of the business activities of the MoJ (and for its benefit) and that the risk of the wrongful act occurring was created by the MoJ in assigning responsibility for those activities to the wrongdoer20.
The ruling of the Supreme Court in the case of Mohamud however has wider implications for the second limb of the test, the “close connection”.
The facts of Mohamud are as follows. The claimant, Mr Mohamud, attended a Morrison supermarket petrol station and asked the cashier to print some documents for him from a USB stick. The cashier, Mr Khan, refused and ordered the claimant to leave, which the claimant duly did. Mr Kahn followed the claimant outside and as the claimant was getting into his car, subjected him to a brutal verbal and physical attack on the forecourt. In doing so, Mr Kahn ignored the instructions of his supervisor who was trying to get him to stop the attack.
The Supreme Court held that Morrison Supermarkets was liable for the acts of the employee. It was the employee’s job to attend customers, and his threatening and ordering of the claimant to leave was within the field of activities assigned to him. When the employee followed the claimant out onto the forecourt, this did not break the sequence of events as the employee had not metaphorically “taken off his uniform”. Ultimately, the attack was not personal between the employee and claimant; the employee was ordering the claimant to keep away from his employer’s premises, and he reinforced that order through violence.
In delivering judgment, the Supreme Court emphasised that the “close connection” requirement for vicarious liability as set out in Lister21 remained good law. However, it is the addition of the “field of activities” element of the test which suggests a wider interpretation by the courts. In his judgment, Lord Toulson identified that the two most relevant factors when applying this limb of the test were:
- “what functions or field of activities have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job22”and
- “whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice23.”
The fact the Supreme Court was willing to attribute vicarious liability to Mr Khan’s employer in circumstances where the judges recognised that Mr Khan’s actions were both “inexcusable” and a gross abuse of his position24 therefore demonstrates a marked shift in favour of claimants in such cases.
Potential consequences for employers in the sports industry
So how might these rulings affect employers in the sports industry? We take a look at two hypothetical scenarios to which the Mohamud and Cox cases may have serious consequences for sports bodies as employers.
Scenario 1- The Training Ground
Generally speaking, all professional rugby clubs encourage full physical contact in training. Such training is compulsory, structured and supervised by managers and coaches. In reality, the training ground is where a rugby player spends most of his time as an employee of the club.
During a warm up drill in a training session, Player A decides to play a practical joke on a team mate, and trips Player B from behind. Player B, taken by surprise, falls awkwardly and tears his anterior cruciate ligament on hitting the ground. Following consultation with the club doctor and specialists, player B is unable to play rugby again and is forced to retire.
Player B brings a vicarious liability claim against the club for the act of Player A. In the circumstances, Mohamud seems to open up the possibility of the court concluding that vicarious liability exists. There is a clear employer-employee relationship (stage 1 of the test) and a sufficiently close connection between Player A’s employment and the wrongful act committed (stage 2). In reality, Player A is employed to play rugby for the club, which undoubtedly includes taking part in a training session in which he has a duty to his fellow players. The injury to Player B occurred during the “field of activity” of Player A’s employment and the training session was organised by the club, therefore creating a risk of injury to its players.
Scenario 2- Sexual Misconduct
Off the field, there is a strong emphasis on professional sports clubs to take part in local community and charity based initiatives conducted in partnership with their own charity foundations. Accordingly, players are often tasked with attending such events in which they meet young supporters and aspiring sports stars of the future. Clause 4 (Community Public Relations and Marketing) of the Standard Premier League Playing Contract even sets out football players’ obligations in this respect.
Player A attends a charity event at a local school, organised by the club. At the event, Player A meets a 15 year old female supporter, who is a member of the club’s junior supporters’ group and big fan of Player A. Following the event, Player A finds the female supporter on Facebook and sends her a message asking for her phone number. The supporter obliges, and Player A begins messaging her on his mobile phone, which is paid for and owned by the club. The two arrange to meet on several occasions in the city, and Player A gives free tickets and merchandise to the supporter. Player A is subsequently arrested and found guilty of Unlawful Sexual Intercourse.
Applying the test for vicarious liability, there is a clear employer-employee relationship (stage 1 of the test). Whilst stage 2 of the test (sufficiently close connection) is not quite as clear-cut, it is possible that a court may still regard it as being satisfied on these facts.
Importantly, Player A first attended the charity event in his capacity as a player of the club and in accordance with his contract. Subsequent conversations and messaging were facilitated by the use of the club mobile phone, though it is likely that use by Player A of his own phone would make little difference to the issue of liability. Whilst Player A never met the supporter on club property, it may be argued that by arranging the charity event and asking Player A to attend, the club created a risk of Player A abusing his privileged position and ought therefore to be vicariously liable for Player A’s unlawful acts.
What are the limits of a “practical joke”?
Generally speaking, vicarious liability is most likely to arise in a sporting context in situations where third parties are injured or incur a loss as a result of sports personnel who are employed by a club. In addition to the hypothetical scenarios discussed above, clubs and players need to be aware that such injury or loss can also occur “off the field”, such as in circumstances where a player is representing his club at an organised charity event or dinner, or where a third party is injured as a result of fighting or misconduct in bars and nightclubs.
However, vicarious liability will also apply to internal situations at sports clubs. For example, a club may be held liable for injuries inflicted on a player by a team mate following a training ground scuffle, or a practical joke taken too far.
The case of GB v Stoke City and Fox25 is a good example of the consequences that a practical joke taken too far can have. The claimant in this case was an apprentice footballer at Stoke City FC from 1986-1988. During those two seasons, the second defendant, Peter Fox, was the club’s first team goalkeeper. The claimant’s claim was based on an assault (known as “gloving26”) that allegedly occurred on two occasions during the two seasons by Mr Fox. The claimant argued that as an apprentice footballer, he (and his teammates) were subject to these assaults as a form of initiation by the older professional players at the club. The Claimant claimed that the apprentice system at the club had created an increased risk of abuse that had become an accepted practice, and that he had subsequently suffered depression and the loss of a professional football career as a result.
The claimant’s claim failed on the grounds that there was no proof of the assaults and therefore the court could not determine that there was an express or implied authorisation by the club for the alleged assaults. In its ruling, the court held, obiter, that the assaults were not so closely connected with employment as to be fair and just to hold the club vicariously liable and could not be said to have been conducted by Mr Fox whilst acting in the ordinary course of the club’s business or employment27. The court stated that even if the claimant had discharged the burden of proof in demonstrating that the assault had occurred, it would have been “deliberate and intentional or reckless conduct involving a serious assault outside the course of the second defendant’s employment28” and one which the court would not be willing to impose vicarious liability on. In support of its ruling, the court found that the club had conferred no special or contractual authority on the professional players to chastise the apprentice players.
Whilst the court was unwilling to determine that vicarious liability existed in this case, it did provide useful obiter comments in respect of situations whereby a club may be held liable for the acts of its players. The court noted that if the second defendant had been accused of assaulting a youth supporter in the course of performing his contractual duties as president of the youth fan club then the club would probably have been vicariously liable29. This demonstrates the importance of the “close-connection” that must exist between the employment and the wrongful act, and that wrongful acts committed by players in the course of their wider, off the field acts are just as likely to give rise to vicarious liability as those committed on it.
For more information on tackling bullying in elite sport and best practice for sports organisations, please see here.
Comment and tips for employers
Each case of alleged vicarious liability will turn on its own unique facts. The key shift and potential pitfall for sports bodies following the Mohamud case relates to the widening of the “field of activity” of the employee. Whilst clubs are unlikely to be vicariously liable for personal acts of employees that are not in the course of employment, they will be more vulnerable to potential claims by third parties.
It is important that clubs educate players on their required conduct and duties they have to not only each other as players, but also to third parties. Whilst the Standard Premier League Professional Playing Contract recognises players’ duties at clause 3, enforcement of any breach of these provisions may prove more difficult in practice, especially in light of any potential vicarious liability claim.
Employers in the sports industry should therefore take pro-active steps to mitigate any potential vicarious liability. If they become aware of potential pranksters or a known illicit practice taking place (such as initiation rituals as in the GB v Stoke City case), they ought to address this issue without delay and provide clear instructions to the employees concerned that they are unauthorised to behave in such a way. Rather than risk avoidable situations transpiring, tackling issues at the earliest opportunity will undoubtedly reduce the risk of potential claims. Furthermore, the widening of the doctrine of vicarious liability following Cox and Mohamud is likely to mean that employers must do more than just issue policies to employees, and sports clubs and bodies may wish to examine their own Codes of Practice as well as ensure that all employees receive regular, comprehensive training as to what is acceptable conduct. Employers ought to take pro-active steps to ensure that policies are fully understood and acted in accordance with.
In addition, sports bodies and organisations may wish to examine their liability insurance policies to satisfy themselves that they are covered as comprehensively as possible for tortious acts of their employees. On the flipside, insurance companies may well be concerned that these two decisions indicate an expansion in the circumstances in which employee conduct is likely to be attributable to the employer. This is likely to increase the number of claims by employers where such liability is established and it will be the insurers who are expected to pay out.
Ultimately, the Mohamud case has shifted the balance in favour of claimants and sporting bodies now have a greater potential liability for the acts of their employees. It remains to be seen whether the judiciary will seek to restrict the test in future cases, but the judgments in Cox and Mohamud would suggest that this is not in contemplation. Critically, as long as society continues to view employers as the party that ought fairly bear responsibility for an act of an employee due to the disparity in fiscal means and deeper pockets of the employer, the doctrine is unlikely to be restricted. In an era where the media spotlight is firmly on the sporting world, sports entities must therefore ensure they take all available and appropriate steps to mitigate their potential of falling victim to this doctrine.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Dispute Resolution | Employment Law | Football | Premier League | Rugby | Tort | United Kingdom (UK) | Vicarious Liability
- Liability for spectator safety in sport from on-field incidents in the USA and England & Wales
- Could incidents of concussion in sport be an issue of negligence?
- A practical guide to the liability arising from risk assessments in motor sport
- The extent of employer and employee liability for discrimination cases in sport
Senior Associate, Mills & Reeve
Phil is a Senior Associate at Mills & Reeve LLP specialising in sports litigation and sports regulatory matters, with a particular focus on the football industry. Phil has worked on a number of high profile integrity/match fixing and doping cases across a variety of sports and also regularly advises football clubs, agents and players on transfers, most notably where work permits are required. He also has extensive experience in representing agents, players and managers in both the High Court and FA Rule K arbitration cases. Phil is the only individual in the West Midlands to be ranked as a “Next Generation Sports Lawyer” (Legal 500 2019) and a “Rising Star” (Legal 500 2020), who also describe him as “emerging as a confident and capable litigator”. Phil speaks German and is also a member of the Sport Resolutions Pro Bono Panel.