Compensation for Sports-Related Injuries: A Review of Gary Smith & Anor v Ben Collett [2009] EWCA Civ 583

Introduction

We often wince in pain and shudder when a player goes down from a heavy challenge from an opposing player, and scream ourselves hoarse when the referee fails to exact the correct punishment. Even when a player is correctly dismissed for putting his studs up or stamping an opposing player with a resulting career-threatening injury, a part of us still bays for blood over what is commonly perceived as an “unsportsmanly” challenge — from Roy Keane’s infamous challenge on Alf-Inge Håland to Nigel de Jong’s karate kick on Xabi Alonso in the 2010 World Cup final between the Oranje of the Netherlands and La Furia Roja of Spain. The list is endless, and the result is always the same: justified public outrage and condemnation of even the most innocuous of tackles.

This dangerous trend has been rationalised by some analysts who are quick to remind everyone watching that “football is a contact sport.” Where, however, does one draw the line when these “necessary” body contacts result in serious bodily damage to the players at the receiving end of the contact? Where a player suffers serious injury as a result of a malicious contact during the game, what is the quantum of compensation he is entitled to, and what factors does the court consider in arriving at its decision?

It is pertinent to remind professional footballers and sportsmen that they can potentially face civil liability for their on-field actions should the victim decide to challenge the same — and that this also applies to their employers, who could be held vicariously liable by the court. This is the slant of the present review of an English court’s pronouncement on the issue. The case of Ben Collett v Gary Smith has postulated a position and an adequate means for recovery of loss and damages where serious injuries occur. This article reviews the notable judgment given in the case.

Background facts

Benjamin (Ben) Collett is an English former footballer who played as a central midfielder for Manchester United, New Zealand Knights and AGOVV Apeldoorn. Collett started his football career with Manchester United when he signed a trainee contract with the club in July 2001. He became a regular in the club’s Under-17 team, progressing to the Under-19 team in 2002, and for his performances during the 2002–03 season received the Jimmy Murphy Young Player of the Year award. The season climaxed with triumph over Middlesbrough in the FA Youth Cup, where Collett scored a goal in the first leg of the final at the Riverside Stadium.

A week after the team’s FA Youth Cup triumph, Collett was picked for a reserve team game against Middlesbrough on 1 May 2003 — his first for the adult Reserves team. During the game, a tackle by Middlesbrough’s Gary Smith left his leg broken in two places, and he was subsequently replaced by Kieran Richardson. He hoped and expected to enjoy a successful career as a professional footballer at a high level. Although he made an apparently good recovery from the fractures, he never regained his former ability in the game, and two to three years after the accident he gave up professional football and embarked on another career. Five years down the line, he began legal proceedings against Gary Smith, Middlesbrough FC and Middlesbrough’s insurers, claiming damages for the end of his career.

At first instance, Swift J concluded that Mr Collett would at least have played in the Championship for eleven years and had a 60% chance of playing in the Premiership for one third of that time. Since he had been injured as a youth player and had never played a first-team game, that might seem a surprising conclusion — but Mr Collett had a plethora of documentary and witness evidence to support his case. Sir Alex Ferguson testified that he had a glittering career ahead of him, as did Gary Neville and the youth coach at the time. Mr Collett had won a prestigious Manchester United award in the previous season, whose previous winners included Ryan Giggs and Paul Scholes; his contemporaries attested to his skill, potential and personal qualities. The judge broadly accepted this evidence and allowed the large majority of the earnings claim.

The judgment

The judgment delivered at first instance was in favour of Ben Collett, and the decision was upheld on appeal. Collett claimed that the club was liable for the injury he suffered and for the resultant effect on his career, in terms of the earnings he would have made had he proceeded into professional football — that he had been deprived of his chance of a lucrative career as a professional footballer.

At trial, damages for pain, suffering and loss of amenity were agreed between both parties, with the award set at £4,577,323. The bone of contention on appeal was the award of £3,854,328 for loss of future earnings. The defendants argued this was a large and unverifiable claim, and appealed the award on three grounds: (1) the 15% discount applied to reflect the risk that Ben would not have achieved the expected level, or that his career might not have lasted as long as expected; (2) the assessment of the prospective annual earnings of a Championship player in 2008/2009; and (3) the decision to uplift the annual salary by 25% to reflect the finding that Ben would have played for a club at the upper end of the Championship.

The court’s reasoning

Middlesbrough FC argued the court had made an unfounded decision to place a burden on the club for an unforeseeable and unverifiable claim of future earnings. The Herculean task facing the judge was to assess Ben Collett’s chance of pursuing a career as a professional footballer, considering: what level he might have been expected to play; what level of remuneration he would have earned; and over what period.

To determine this, the judge referred to the player’s track record and current rating, and called witnesses including Sir Alex Ferguson, the club’s manager at the material time; Mr Gary Neville, the club’s captain at the material time; Mr Howard Wilkinson, who after a career as a professional footballer, manager and coach worked as Technical Director of the Football Association; and Mr Paul McGuinness, the club’s Under-18s coach and Assistant Youth Academy Manager, who had coached Collett from age 9 to 16 and watched his development as a junior at Manchester United.

The Court then looked at what the player was earning at the time judgment was given, to determine what he would probably be earning if he had remained in professional football, and considered an average professional career period. The Court of Appeal dismissed the appeal. On the discount point, it accepted the submission that once it was appreciated the trial judge’s task was not merely to assess the risk of a potential shortfall but also to account for the potential for even higher earnings, the overall 15% discount was not unreasonable. The judge had little by way of published figures to go on when assessing prospective annual earnings for 2008/2009 and was entitled to make the findings she did, and the evidence was ample to justify her approach to computing the annual salary.

The award for future loss of earnings was very high, but it was clear Ben Collett was an extremely talented player, supported in his claim by witnesses including Sir Alex Ferguson, who gave evidence that his performance in the FA Youth Cup final had been “absolutely outstanding.” The trial judge had to assess his potential earnings — no easy task in a competitive sporting world where success is not easy to achieve — and the Court of Appeal endorsed the approach adopted and upheld the award.

Our comments and conclusion

What is most interesting about the outcome in Ben Collett’s case is that judgment was given in favour of the claimant. The case now serves as a precedent for football players and clubs alike. It is a landmark judgment, and while much will be made of the figure involved, it would be foolish to lose sight of what Ben Collett lost — for he clearly, from all the evidence tendered, would have been a leading professional sportsman making the sort of money top stars are entitled to.

The case will have wide-ranging impact on football at all levels. Football clubs at both amateur and professional standing will need to examine carefully their third-party insurance liability cover, as cases like this will inevitably become more common. Individual professionals will now have more adequate insurance cover, particularly in light of the judgment. The decision has set a standard going forward as it relates to injuries occurring in football games.

What is expected of sports law practitioners?

The lawyers representing both sides of such a case — especially counsel for the injured player — should understand the evidential burden they face. Both sides should seek as much evidence as possible about the player’s playing abilities and future prospects. The claimant’s lawyers will seek to show a long, promising and lucrative career lay ahead; the defendant’s lawyers and insurers will seek contemporaries or coaches who can debunk claims of a promising and lucrative career and argue the player would not have met the lofty expectations of his witnesses.

There are three main sources of such evidence. First, witnesses of fact who have seen the player play and can attest to his abilities — Mr Collett had Sir Alex Ferguson and Gary Neville singing his praises before the judge, while his academy coach Paul McGuinness and the team captain gave supporting evidence; nothing could be more compelling. A critical question is what became of the player’s former teammates — Collett had the likes of Jonathan Spector, Phil Bardsley, Kieran Richardson and Danny Simpson, whose careers waned after their stint at Manchester United, and whether they remained stuck on lower salaries in the Championship or transferred back up to the Premiership bears directly on whether the victim can persuade the court he would have been one of the on-field “successes” of his generation but for the career-ending injury.

Second, the parties could call expert witnesses; if the claimant is given permission to call expert witnesses, the defendant will likely want their own. Experts should give a career forecast including probable earnings in the league and elsewhere. Mr Collett’s expert was a former professional footballer and manager heavily involved in youth development; the defendants called a Professor of Sports Management and Finance instructed to assess statistical evidence of his chances of a successful career and his likely earnings. The judge attached little weight to the statistical evidence, preferring the testimony of coaches and contemporaries who could attest to the claimant’s individual attributes — suggesting parties in most personal injury cases would be well advised to instruct experts with hands-on experience of the issue rather than a more theoretical knowledge of career forecasts.

A final but instructive point is that the parties will be mindful of the victim’s earnings prospects as an ex-footballer. Presumably he would not be able to earn as much as he earned as a player, regardless of whether he became a studio pundit or obtained his coaching badges — the point being that the victim would find his job as a player more rewarding than any other job he engages in to earn a living. The earnings claim will be the difference between what the player would have earned in football and his realistic earnings now.