07 June 2022

The tears and cheers of the domestic football season have come to a close. Everyone* has marked their preferred team’s successes/despairs/improvements and begun to seasonal task of scraping together smash from the big jar in the kitchen to go towards the new strip for next season. But don’t worry unduly, for it is thankfully World Cup year and we have a festival of football to tide us over until the next era-defining season…

Except this summer, the World Cup is not taking place until late autumn/early winter. So, to fill the gap, there is nothing else for it but to look at some football related caselaw!  A recent decision in the High Court of England and Wales (Queens Bench Division) in Fulham Football Club v Jones, 2022 led to a successful appeal of a decision that had been made against Fulham Football Club for the acts and omissions of their player. The game took place on 10 December 2016, at Motspur Park, London. Harris, a Fulham player, performed a tackle which injured Jordan Jones, an opposition player. The injury was so severe that sadly Jones’ professional career was ended before it had begun.

Jones initially sued Fulham as vicariously liable for Harris’s actions. The Recorder at first instance found that Fulham were vicariously liable for what had been a negligent act by Harris in tackling Jones as he did. The tackle itself was not described as either “agricultural” or even “robust”. Indeed, Harris had played the ball, although in the aftermath his feet also came into contact with Jones. Crucially (for the appeal) the referee had seen the whole thing unfold. He didn’t send off Harris and he didn’t book him. He didn’t even award a free kick. According to the referee, therefore, no foul had been committed according to the rules of the game.

The appeal discusses the Recorder having failed to apply the standard for liability claims in a professional sporting context. That is to say that it must be shown that (1) the defendant had breached the laws of the game and (2) that the defendant had been negligent. The problem with the Recorder’s decision was, it was submitted, that he had aligned serious foul play with negligence. Had the tackle been considered serious foul play by the referee at the time, then Harris would have been shown a red card. Had it been reckless, he would have been shown a yellow card.

One of the grounds of appeal (of which there were 4 and all succeeded) was that the Recorder had not taken into account all contemporaneous evidence. He set out in his judgment that he gave no weight to the fact that there was no sanction issued to Harris and that no foul had been committed in the opinion of the referee. In failing to take this into account at all, the Recorder had erred in law. The appeal was allowed and there will be a re-trial.

*not everyone, some people don’t like football, which is absolutely fine.

Tim Webster, Associate: twe@bto.co.uk / 0141 221 8012