Critiquing Collett: The Assumption of Risk in Football as a Profession

By Whyte, Adam | The International Sports Law Journal, July-October 2009 | Go to article overview

Critiquing Collett: The Assumption of Risk in Football as a Profession


Whyte, Adam, The International Sports Law Journal


Recently in the matter between Gary Smith & Anr and Ben Collett it was decided that a football player could be compensated for future earnings that were lost as a result of a dangerous play on the football field. Ben Collett, once a promising 18 year old Manchester United Football Club academy player, never regained his former ability or realized his potential to be a professional footballer. However, football, much like any sport, is a profession which carries a high level risk of injury and consequently the early termination of ones career. The participants and hopefuls know this when pursuing this fragile career option. I will endeavour to explore whether or not it is correct for the courts to award loses for potential career earnings; a value which is so difficult to determine, whether the courts have the capacity to calculate the future earnings of a footballer, and if the Judge's calculation of future loss of earnings was done so appropriately and accurately.

Introduction

On 1 May 2003, Ben Collett, the respondent, was playing in his first match for the Reserves team of Manchester United. As a result of a high, "over the ball" tackle from Mr. Gary Smith, a Middlesbrough Football Club player, Mr. Collett suffered severe fractures of the right tibia and fibula. He was 18 years old at the time.

Despite making an apparently good recovery from the fractures, he never regained his former ability, and two/ three years after the accident he gave up on professional football to pursue other career options.

Mr. Collett issued civil proceedings against Middlesbrough Football Club and Mr. Gary Smith, the appellants, claiming that he had been deprived of his chance to pursue a lucrative career as a professional footballer.

On 17 June 2009, the England and Wales Court of Appeal (Civil Division) made a ruling on the said order awarding damages in favour of Mr. Collett. They upheld judge's decision and set a new standard for what can be claimed as a result of negligence that has occurred on the field of play.

On 3 October 2009, Lord Swift awarded the player GBP 4,577,323. The main issue was the award for the loss of future earnings which the judge valued at GBP 3,854,328.

Future loss of earnings; the rationale

It is common practice to compensate a worker for future loss of earnings, where the worker has suffered damage, as a result of another's liability (1). However, generally the worker is compensated for the amount of money which they would have earned based on their current position in the company, or a position which they would have reasonably been expected to have achieved.

In this situation, we have an 18 year old footballer player with no guarantee of success being awarded compensation for a profession which he had not even begun practicing. In order to support his claim the respondent in this case called upon "expert witnesses" in order to testify on his behalf. Sir Alex Ferguson, the manager of Manchester United Football Club, Mr. Gary Neville, the captain of Manchester United Football Club, and Mr. Paul McGuiness, the club's under 18's coach and Assistant Youth Academy manager who had coached the respondent from the ages of 9 to 16.

These witnesses described the respondent as an excellent talent in a variety of ways. They mentioned that he had won the Jimmy Murphy Award for Young Player of the Year in 2002/2003 (2), he was a left-footed midfield player (3), and that the player was "self-disciplined, focused and professional, both on and off the pitch."

The appellants called their own witnesses, Mr. Nigel Spackman, and Dr. Bill Gerrard, who had not seen the respondent play but had seen film of the respondent in action, and did not view the player in such high regard as the aforementioned witnesses.

With no disrespect to the witnesses of the appellants, it is easy to see why the court were willing to give the opinion's of the respondent's witnesses more clout and weight (4). …

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