There have recently been a number of incidents where the safety of athletes have been compromised by the actions of spectators: two cyclists were shot in the Tour de France and a man was charged with a hate crime after throwing fireworks at the Danish Gay Games. Elizabeth Riley, a non-practising Barrister with Bird & Bird, examines examples where sporting organisations have been found liable for supporter behaviour in negligence or under the Occupiers Liability Act 1957. Riley also examines contractual liability and how a sporting organisation’s members can be held liable for supporter behaviour under the rules of that organisation.
While the vast majority of sports fans are well behaved, there is sometimes a minority element whose actions leave much to be desired. Although this is a problem that is perhaps most prevalent in football, the examples discussed below demonstrate that it is not confined to that sport. During this year’s Tour de France, two riders lodged complaints with the French police after being hit by pellets from an airgun, thought to have been fired by a spectator, during the 13th stage. Concerns have also been raised over the recent behaviour of the England cricket team’s 'Barmy Army' - in particular over the booing of Australian Captain, Ricky Ponting, during this year’s Ashes Tests. Also, UEFA is currently investigating the 2009 Champions League semi-final match between Arsenal and Manchester United, which saw supporters from both sides throwing bottles and smoke bombs onto the pitch.
However, such incidents are by no means a recent phenomenon. In 2003, the Champions League match between PSV Eindhoven and Arsenal was overshadowed by the racist behaviour of some of the PSV supporters, for the most part directed towards Arsenal’s Thierry Henry. There were also problems with racist behaviour by Spanish football fans during the under-21 and senior friendlies against England in 2004. In 2006, a UEFA Cup match between Turkish side Trabzonspor and Cypriots APOEL was marred by serious incidents of crowd violence, with Trabzonspor supporters throwing rockets, bottles and igniting a smoke bomb, which resulted in injuries to several Cypriots fans. During a Champions League match between Celtic and Milan in 2007, a Celtic supporter ran onto the pitch and appeared to slap Milan’s goalkeeper, Dida, around the neck. There were also problems with crowd violence and racial abuse by Atletico Madrid supporters during their Champions League match against Marseille in 2008.
Outside of football, in 1993, the then women’s tennis World No. 1, Monica Seles, was stabbed by a spectator (allegedly a fan of her opponent, Steffi Graf) during a match in Germany. More recently, fighting between Serbian and Croatian fans at the 2009 Australian Open resulted in the ejection of around 30 spectators from the event; similar incidents in 2007 had led to 150 spectators being ejected in one day.
In rugby union, the 2007 Heineken Cup match between London Wasps and ASM Clermont Auvergne saw a Wasps supporter attempt to strike a Clermont player with a match programme following an on-pitch altercation between players from the two sides (he in fact missed the Clermont player and instead struck one of his own team). In 2008, Lewis Hamilton was the subject of racial abuse by spectators during pre-season Formula One tests in Spain. Even the Olympic Games are not immune; during the men’s marathon at the 2004 Olympic Games in Athens, with approximately three miles to go, a spectator (former priest Cornelius Horan) ran out in front of the Brazilian race leader, Vanderlei de Lima, and pushed him off to the side of the road. De Lima went on to finish in third place.
Although for many sports such incidents are fortunately rare, when problems do arise with the behaviour of spectators, there may be legal implications for the sporting organisations involved. At present, under English law at least, those implications are essentially three-fold.
Firstly, sporting organisations may be liable to others under the general law (either in negligence or under the Occupiers' Liability Act 1957). Secondly, some sports bodies use their regulations to make participants responsible for the behaviour of their spectators - for example, imposing an additional 'regulatory liability' on clubs and national associations for the behaviour of their respective supporters. Thirdly, there may also be 'contractual liability', for example under a venue hire agreement or hosting agreement to which the sports organisation is party.
Negligence and the Occupiers' Liability Act 1957
A sporting organisation may be liable to another party in negligence or under the Occupiers' Liability Act 1957 (OLA) in respect of the actions of spectators.
However, for such liability to arise, it must first be shown that the organisation owed a duty of care to that party, either at common law or under the OLA. At common law, the House of Lords in Caparo Industries v. Dickman set out a three-stage test:
- is damage reasonably foreseeable;
- is there sufficient proximity between the parties; and
- is it fair, just and reasonable to impose a duty of care?
Under the OLA, a duty of care is imposed on the occupier of premises in relation to all visitors - for these purposes, an 'occupier' is not only someone in actual occupation, but also includes someone with control over the premises. However, even if a duty of care is established (whether at common law or under the OLA), the sporting organisation is only required to take reasonable steps to guard against reasonably foreseeable risks.
In Cunningham v. Reading, there had been serious crowd violence at a football match between Reading and Bristol City at Reading’s stadium in 1984.
Various missiles were thrown by the Bristol City supporters, including pieces of concrete, which resulted in injury to a number of police officers on duty at the match. The officers subsequently claimed damages from Reading FC, both in negligence and under the OLA. In finding the club liable, the court held first that violence at the match was very likely, in particular given the violent reputation of the Bristol City supporters. It was also very likely that if concrete could be used as missiles, such missiles would be thrown so as to cause injury - this finding was based largely on the fact that there had been trouble at previous matches with spectators breaking up concrete to use as missiles.
The court also found that the concrete in the stadium was in poor condition and the club had failed to take any steps to make it more difficult for people to break up the concrete and subsequently use it as missiles. Given the court’s finding that concrete missiles were very likely to be thrown, the actions of the spectators in throwing such missiles did not break the chain of causation between the club's breach of duty and the damage sustained, and the club was accordingly liable in negligence and under the OLA in relation to its failure to maintain the ground.
This decision must, however, be read in context - such cases are likely to be rare. The result in Cunningham was heavily dependent on the facts in question - the prior reputation of the fans, knowledge of previous incidents, the appalling condition of the stadium and the complete absence of action by the club.
Some sports bodies, under their regulations, impose liability on participants - such as clubs and national associations - for the behaviour of their respective supporters. Possible sanctions for breach of such regulations include monetary fines and bans on spectators attending particular events. This regulatory liability is in addition to any liability that might exist under the general law.
In imposing such additional liability, a sports body makes it clear to participants that, irrespective of the general law, they will be held accountable for the actions of their supporters. This encourages participants to take appropriate steps to control such behaviour and arguably reflects the reasoning that it is the participants who are best placed to do so.
Under UEFA and FIFA rules, football clubs and national associations are held strictly liable for the behaviour of their spectators. The legality of this approach (at least under Swiss law) was upheld by the Court of Arbitration for Sport in PSV Eindhoven v. UEFA15, the Court fining PSV Eindhoven CHF30,000 (€19,800) for the racist behaviour of its spectators in a UEFA Champions League match against Arsenal.
For the racist behaviour of Spanish fans during the 2004 friendlies against England, FIFA fined the Spanish FA (RFEF) CHF100,000 (€65,900) and warned that further incidents may result in the Spanish teams being forced to play matches behind closed doors or being excluded from FIFA competitions. The crowd violence during the 2006 UEFA Cup match led to UEFA imposing a one match spectator ban on Trabzonspor, with a second one match ban deferred for a probationary period of two years.
UEFA also fined Celtic €35,760 for a lack of organisation and improper conduct by its supporters during the match against Milan in 2007, when Milan’s goalkeeper was struck by a Celtic supporter (although half of the fine was deferred for a probationary period of two years). In relation to the crowd trouble between Atletico Madrid and Marseille in 2008, the Court of Arbitration for Sport gave Atletico Madrid a one match spectator ban and a fine of €75,000. It appears that Arsenal and Manchester United may be fined by UEFA in relation to the behaviour of their spectators at this year’s Champions League Semi- Final.
Outside football, European Rugby Cup Limited (ERC) - the organising body for the Heineken Cup - is another entity that holds participating clubs liable for the behaviour of their respective supporters. Although no organisation or individual was held liable for the racist abuse directed at Lewis Hamilton in 2008, the FIA (the governing body for world motor sport) did issue a stern warning to circuit owners that any future incidents will result in sanctions, including potential expulsion of circuits from the Formula One calendar.
A sporting organisation may be liable for the behaviour of spectators pursuant to its contractual arrangements (such as venue hire or hosting agreements). Although the extent of such liability and the party it rests with will depend on the terms of the contract in question, a sports organisation such as a club may - for example - be liable for damage caused to the venue by its spectators. This differs from the regulatory liability discussed above, as an action against the sports organisation would not be a disciplinary charge, but an action for damages.
At present, under the general law, the liability of sports organisations for the behaviour of their supporters is fairly limited. Only in rare cases will liability in negligence or under the OLA be established. For example, if events such as those in this year’s Tour de France were to occur in the UK, it seems unlikely that they would result in any such liability for any of the organisations involved. Even if a duty of care were established, given the large area covered by the race and the consequent difficulties in exercising control over the large number of spectators, there is arguably little that could be done by way of reasonable steps to prevent such incidents arising.
If, however, a sports organisation is accountable under applicable regulations for the actions of its supporters, the above examples demonstrate that its liability may be significant. As to contractual liability, this will depend entirely on the terms of the contract in question.
Irrespective of liability, bad behaviour by supporters can have serious consequences for a sport and the key for all sporting organisations is therefore the prevention of such incidents.
Football is a good example of this, controlling access to events through ticket sales and separating home and away fans at matches. There are also specific statutory controls relating to football: the Sporting Events (Control of Alcohol etc) Act 1985 imposes certain controls on alcohol, for example, making it an offence to drink in sight of the pitch; the Football (Offences) Act 1991 creates several football-specific criminal offences; and under the Football Spectators Act 1989, the court can impose football banning orders to prevent individuals from attending certain football matches in England, Wales and abroad. The recent concerns over the behaviour of spectators in cricket have also led to efforts to clamp down on unruly behaviour. For the Fourth Ashes Test at Headingley, no musical instruments were allowed into the ground (much to the disappointment of the Barmy Army trumpeter) and the bars inside the ground were also closed for one hour in the afternoons.
Finally, it should also be remembered that all spectators remain subject to the criminal law (indeed, the complaints lodged by the Tour de France riders were with the French police). The tennis fan that stabbed Monica Seles was given a two year suspended prison sentence, while former priest Cornelius Horan was given a one year suspended prison sentence in relation to his actions at the 2004 Athens Games.
This article was first published in World Sports Law Report