Injuries in Sport: Liability or Consent - Literature review Example

Sports Law Name Course Institution Date Sports Law Injuries in sport: Liability or consent? Sports have become a critical part of society today. People may participate in various sporting activities as a way of recreation or as a profession. In fact, the sports industry is one of the highly paying professions around the world. However, there is great risk of injury associated with sports. This poses the question of whether any injuries got while participating in sports should be considered as a matter of player’s consent for the inherent risk of injury or whether direct liability should be apportioned to other parties involved in the sporting contract. Sporting is subject to the law of torts, criminal law and the law of contract. This means that there is grounds for liability resulting from a violation of health and safety regulations, and vicarious action. Literature Review According to Schot (2005), insurance premiums connected to sporting injuries have risen in recent years. Tort law has also discouraged most sporting organizations due to the potential liability. The perception of liability in sporting injuries has come a long way. In early years, players avoided the tussle for compensation for it was taken that they had consented to the risk of injury from the sporting contracts signed. Things have changed, and there is a renewed push by players to claim compensation for any injury caused by the intentional actions of other parties. On most occasions, players seeking compensation for sporting injury cite negligence as a cause of action. There is a need to make a tradeoff on the extent of inherent sporting injury that a player should accept out of his consent to agree to compete. This is different from sporting injuries resulting from others’ negligence, which may warrant legal action for compensation. The players will then understand that injuries suffered voluntarily cannot be considered as an injustice for oneself. This would help to promote participation in sporting activities. Schot (2005) discusses the law of negligence in relation to sporting defenses, public policy that shape the law, legislative amendments and approaches used to reduce the extent of negligent liability in sports. The duty of care forms the basis for most negligence lawsuits in sports. For example, the sports facilities managers have a duty of care to everyone in the sporting premises. They should provide safety and prevent possible dangers. Similarly, sport supervisors such as coaches, medical attendants and managers have a duty of care to the sportsmen they attend to. Sporting participants should also care to prevent the risk of injury amongst themselves. Even the referees owe a duty of care to the sporting participants through enforcing the rules of a given sport. In this regard, the management of a sporting team would also assume vicarious liability for supporting a wrongful act in sports committed by their player. The different extent of risks associated with every sport usually force the courts to apply different standards of care for each case verdict. Factors considered in the litigation process for sporting injury compensation include the age and ability of the players, type of sport and the qualification of the coach. Other issues may include whether the sporting context is a commercial or volunteer engagement. In a commercial engagement, there is more expectation for responsibility from the employer as compared to volunteer sporting activities. Notably, the American courts have been using the ‘recklessness rule’ instead of the ‘negligence rule’ to determine sports injury cases. It is referred to as the volenti non-fit injuria law doctrine. The courts take it that a player knows, comprehends and appreciates the risk involved in a given sporting activity at the time of contractual commitment. In this approach, the defendant needs to prove the assumption of risk by the plaintiff at the time that he or she accepted to participate in the sport. When they provide such proof, the courts absolve them of liability. This way, competition and participation in sports is encouraged. Litigation cases involving sports injury also reduce. The courts take it that a player knows, comprehends and appreciates the risk involved in a given sporting activity at the time of contractual commitment. The US doctrine of volenti non-fit injuria requires the sporting plaintiff to have actually known an accepted and non-inherent risk and proceeded to accept it. This is critical in developing court defense against negligence court claims. Inherent risk is another close doctrine that a defendant may use to fight litigation. This one reiterates that the risk of sporting injury should be common knowledge, and the player should be informed to reduce the extent of care owed by the defendant. In the Rootes v Shelton court case, Barwick CJ indicated that whenever players engage in sports, they are deemed to have accepted the risks inherent in a sporting activity. Those inherent risks can be determined by the established rules for every game. After informing the player of the inherent risk, the sporting participant should not play with outright disregard for the sporting rules. The Civil Liability Act (2003) enacted in the US frees the defendant of liability whenever there is inherent risk involved since no amount of reasonable care by the defendant can prevent such risk from occurring. It also reiterates that involvement in a dangerous sport that has an obvious risk cannot place negligent liability on the defendant regardless of whether the plaintiff was unaware of the risks at all. This same Act also awards damages based on the extent of contributory negligence of all parties, including the plaintiff. Schot (2005) notes that Australia has also adopted the same stringent approach by America on sports injury litigation. In the case of R v Coney, the verdict maintained that a person may forego his rights to act civilly but his actions should not prejudice the public interest. Generally, sporting contracts presume that players give consent to some level of violence from the onset of the sporting activity. The application of criminal justice in sporting is meant to prevent any form of impunity by every member of society. This would help to dispel the idea that players give consent to grievous bodily harm, as this is contrary to public policy. Australia usually forms sporting tribunals to attend to matters related to sporting injuries. It also limits criminal prosecutions to extreme injuries and deaths committed during sports. Even in such cases, the defendant must have grossly failed to observe any standards of care to justify a criminal prosecution. Such cases may include manslaughter, assault, and extreme negligence. In Australia, these acts are regarded to be beyond the mandate of the sporting tribunals, making the criminal law applicable in such cases. Importantly, the courts must balance the need to win with the need to care. In their application of criminal liability, they should encourage the competitive nature of sports. This comes from the recognition that there is a certain extent of violent contact that cannot be avoided in sports. When sporting organizers are aware of the possible threat of prosecution, they will act to prevent any acts that would be deemed as negligence. Additionally, when extreme, violent acts are committed in sports without any reprimand by law, it would only discourage players and spectators. This would be against the public interest. In the case of Caldwell v Maguire and Fitzgerald, the Court of Appeal ruled that the desire to win and the inherent error of misjudgment that players may make in the course of play should not place a burden of liability on them. Schot (2005) also highlights the perceived insurance problems brought by applying the tort law on sports. Insurers expect that people should enjoy sporting activities without accepting any liability for injuries associated with it. They have proceeded to attach high premiums on defined injury categories. In some cases, the insurers refuse to pay for sporting injuries with high risk of occurrence. Poor risk management by sporting bodies, high cost of investigation, and international trends on insurance might have contributed to this development (Schot, 2005). Though most insurance compensation claims by players usually fail, there has been an increase in the number of such cases in recent years. In some cases, the insurance premiums have risen by between 100% and 500% for the outdoor sporting activities. One may conclude that litigation for negligence in connection to sporting injuries is important in securing compensation for injured players. It also deters negligent action by participants. However, there is need to encourage the competitive aspect of sporting endeavors by balancing the need for competition and the need for care. The legislative bodies, leading sporting bodies and stakeholders can consider this to increase participation in sports. Determining the extent of liability in sporting injuries should be done on a case-by-case basis. Only outright cases of negligence, violence of death should be prosecuted. The player should also be ready to accept the inherent risk associated with a sporting activity. Contracts of Employment in Sport Employment contracts in most sports is much similar to the ones in other professions. The sportsman need compensation for the services offered. The terms of employment in sports vary according to the role played by the parties involved. Therefore, sports agents would have different contract requirements from team managers, players, coaches, referees and medical assistants. This discussion will focus on the common elements of sporting contracts and the different categories of sporting contracts. Literature Review Sports contracts must have the critical elements carried in the law of contract. This would promote a healthy working relationship between the different parties in the relationship. Through the legally binding agreement signed by sporting professionals, there is normally clauses that define responsibility, liability and redress in the event of failure to honor agreements reached. Sullivan (2010) states that a contract should have six key elements for it to be legally binding and enforceable. First, there should be an agreement between the consenting parties. Sporting contracts are express agreements, meaning that only the clauses expressed in writing constitute the entire subject and requirements of the contract. Only the written content is enforceable by law. The agreement should be based on an initial unqualified offer. The offer should be accepted for the contract to stand. Alternatively, the offer can be rejected, allowing room for placement of a counteroffer in a bid to secure acceptance. If the offer is finally accepted, the contract stands. Otherwise, its rejection would mean a termination of the contract. There are many reasons that may lead to termination of sporting contracts. For example, the person making an offer could revoke it after a reconsideration, the agreement could have been overtaken by time and events, a party to the contract could have been disabled or dead, the offer could have been rejected, or a change of law could have rendered the contract illegal and thus untenable. Secondly, the parties signing up an employment agreement should be competent enough to meet the requirements and obligations contained in a contract. The persons agreeing to a contract should be of sane mind and be able to deliver their part of the bargain. They should also have attained the legal adult age. There is some tradeoffs in sporting contracts involving minors. Normally, the parents or guardians of the minors sign up the contracts on behalf of their children. However, the minors can still reject the terms of the contract, making it void (Sullivan, 2010). This would override the consent of the guardian or parent though the other party in the contract would need to be indemnified. The third critical element of a sporting contract is the need for a genuine and uncondescending assent of all the parties involved. The persons entering into a contract must do so with no pressure or deception, manipulation or mistake. If one party makes a mistake in the contract, it will not affect the enforceability of such an agreement if the other party does not know about the mistake. Such unilateral mistakes are usually borne by the mistaken party. However, if both parties make a factual mistake, then the contract is deemed void. This element also holds the notion that a person who signs a contract document is bound by its requirements even if he fails to read it before signing. One can only be exempted if the other party knew beforehand that the contracting partner could not actually read (Sullivan, 2010). In such cases, there is need to organize for a way of explaining the contract terms explicitly. This could be the case for illiterate or physically challenged persons. In the event that a third party is involved in making explanations to the person being given an offer, the contract could also be voided if defrauding occurred and there was enough justification for relying on a third party to interpret the contract terms. This is especially the case for sporting activities for people with disabilities. Fourthly, a sporting contract must be supported by a consideration. This is essentially the price paid for the promise made in the offer. It is often the legal value in the contract, though on most occasions the value is usually defined on economic terms. For the fifth and sixth elements of contracts, they should meet objectives that are legal and be crafted in a form that is required by the law. This means that the court system would only enforce legal contracts and those that are in line with public policy. If the law requires a written agreement, then duplicate or triplicate, copies must be signed for the agreement to stand. According to Sullivan (2010), there are there distinct classes of sporting contracts. These are the standard player contracts (professional services contract), appearance contracts, and sporting endorsement contracts. Players belonging to a sporting team normally sign up a standard player’s contract (SPK) with variations in salaries, bonuses, and renegotiation offers. The involvement of a player in other games such as football associations do not normally affect the standing SPK contracts signed. At times, some leagues consider giving a minimal salary and an additional incentive that rewards the players on the basis of every game performance. The SPK contracts can be modified by adding addendums to the original contract. Such agreements may also be varied depending on whether the sporting league owns the teams participating in the competition, or every team is acting out as a franchise for a given league. Endorsement contracts involve the use of a player’s image or name to advertise the products of a sponsor. The sponsor is granted advertisement rights for the brand name and image associated with a given player after paying for it. Similarly, an appearance contract is meant to pay a sporting personality for appearing for a given public function, tournament or event. The leagues normally maintain common elements in sporting contracts for easy administration. The provisions captured are normally drawn by giving the whole agreement a pessimistic approach to see where things could go wrong. Some variations in sporting contracts may include a contract to play for one club, a contract to play in a given event, and a contract for player management. Notably, any restraint to play is normally unacceptable, unless it is in the public interest and serves a benefit to the sporting contract. This is because sports players also have a right to work. However, some occasions of restraint of players appear justified. For example, a league may refuse to allow the transfer of a player to another club. Alternatively, players may be restricted to play in professional football clubs under established zones (Sullivan, 2010). While plying the trade if transfer of sporting players between teams, it is important to consider the public nature that sports contracts have. Communities supporting a given league usually have vested financial and economic interests in the performance of the team they support. In conclusion, sporting contracts remain a critical tool in managing the relationship between sports players and their employers. Sporting agents also remain a critical link in securing and negotiating sports contracts for players in various sports. They normally have foundational knowledge about sporting contracts and the present market value of the sportsperson being considered for recruitment to a team. It is also common to refer disputes in sports to internal dispute resolution committees for arbitration. This creates flexibility, increased speed for conflict resolution, privacy, and a competent dispute resolution panel drawn from sports experts. References Schot, N. (2005). Negligent liability in sport. Sullivan, A. (2010). The Role of Contract in Sports Law. Read More