Academic journal article The International Sports Law Journal

Spear-Tackles and Sporting Conspiracies: Recent Developments in Tort Liability for Foul Play

Academic journal article The International Sports Law Journal

Spear-Tackles and Sporting Conspiracies: Recent Developments in Tort Liability for Foul Play

Article excerpt

Introduction

On 12 May 2000, Jarrod McCracken of the Australian rugby league team, West Tigers, was tackled by two members of the opposing Melbourne Storm team. The strength of the tackle led to McCracken being swivelled off balance and dumped on his head in what is referred to in that sport as a 'spear-tackle'. The tackle resulted in significant neck and spinal injuries ending McCracken's playing career. In February 2005, McCracken successfully sued the offending players and their club for negligence in a case heard by the New South Wales Supreme Court.

On 8 March 2004, Steven Moore of the National Hockey League's Colorado Avalanche was punched and jumped upon by Todd Bertuzzi, a member of the opposing Vancouver Canucks. The ferocity of the attack left Moore hospitalised with three fractured vertebrae, facial cuts, concussion and amnesia. It is unlikely that Moore will ever play hockey again at the professional level. On 15 February this year, Moore filed a lawsuit in Denver District Court accusing Bertuzzi of assault, battery, negligence and civil conspiracy.

The McCracken and Bertuzzi incidents, both of which raise a number of interesting points, will be discussed in the following manner. Firstly, they demand a brief review of the general principles of tort liability arising from violent play between participants. In this, it must be noted that, although this article will be informed by a comparative approach incorporating all the major common law jurisdictions, the primary emphasis will be on English law and what sports lawyers within that jurisdiction might learn from the stated incidents.

Secondly, while the McCracken case is of specific interest from the point of view of the tort of negligence and possible defences such as the assumption of risk; it also reminds professional sports clubs of their vicarious responsibility for acts of their employees. Furthermore, the quantum of damages in the McCracken case is noteworthy in that McCracken is seeking a significant sum in compensation based on the fact that his lucrative professional career was prematurely ended as a result of the negligent tackle.

Thirdly, the lawsuit filed by Moore contains an accusation of civil conspiracy against his immediate opponent, Todd Bertuzzi, Bertuzzi's employing club as well as Bertuzzi's coach and certain named teammates. The implication seems to be that the Vancouver Canucks had a concerted plan to target and injure Moore during the course of the game in question. The potential scope of such a finding will be discussed, as will its implications for all contact sports.

Finally, this article will conclude by indulging in some speculation as to the possible future developments in this area of the law focusing on the duty of care and standard of care expected of participants, coaches, professional sports clubs and sports regulatory bodies.

1. General Principles

The law of torts determines who bears the loss that results from the defendant's unlawful act or omission and seeks to award compensation for that loss. According to Jahn, tort law should be seen as 'the best way to deter violent conduct among athletes and provide them with an adequate remedy for their injuries. Tort law imposes financial liability on the athlete ... and this will hit him where it hurts the most--in his pocket.' (1) In February 2004, for example, former Charlton FC player, Matthew Holmes, received 250,000 [pounds sterling] in agreed damages without admission of liability at the English High Court as a result of a tackle by Kevin Muscat. Holmes suffered a broken tibia in the tackle by then Wolves defender Muscat in an FA Cup game in February 1998. Holmes had launched a 2m [pounds sterling] lawsuit against Wolves and Muscat, who now plays for Millwall.

In attacking the athlete 'where it hurts the most', the law of torts is armed with two weapons, namely, assault and battery (trespass to the person) and negligence. …

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