Even Premier League footballers are owed a duty of care

Sport is going to face many challenges in 2021 as society eventually emerges from the restrictions of COVID-19 and football, even the Premier League — purportedly the richest football league in the world will not be exempt. Rugby Union is facing the prospect of the “concussion litigation” and the expectation is that this may well be replicated in football, and even cricket if credence is given to some reports from “Down Under” but that is a topic for another day.

The Liverpool manager, Jürgen Klopp recently warned of an increasing number of injuries to players imposed by the short time frame for the current season, calling the situation, ‘really dangerous’. The Fulham manager, Scott Parker, was recently unhappy on hearing that his side had to fulfil a fixture at White Hart Lane with just over 48 hours’ notice. Premier League footballers are rarely viewed with sympathy by the general public given the level of remuneration within the Premier League. It does appear however that Messrs Klopp and Parker may have a point.

The current Premier League season started on 12 September, only six weeks after the 2019/20 season finished. It is due to end just 19 days before the postponed Euros 2020 start. Thus the same number of games have to be played in a shortened season following on from an extended season where players have not been able to have a proper break and more importantly in terms of their fitness, a full  pre-season to prepare themselves for the rigours of the forthcoming season. This situation has been replicated in the Championship and Leagues 1 and 2. It must also be borne in mind that the clubs are obliged to fulfil their obligations in the Carabao Cup, FA Cup and for some, European competitions whilst the lower league teams face fixtures in the EFL trophy.

In her 2017 report, “Duty of Care in Sport” , prepared at the behest of the Cameron Government, Baroness Tanni Grey-Thompson  argued that the athletes’ welfare, both mental and physical, should be prominent above all other concerns for sporting organisations. As could be expected given the events of the past three years, that report has been kicked very much into the Whitehall long grass (if not the jungle). Her decision to title her report ‘Duty of Care in Sport’ naturally raised the eyebrows of some in the legal profession.

The Baroness volunteered that she looked at the issue very much in the round considering the welfare of athletes not just during their careers but also as they enter and exit their chosen sports. Cases such as Brady v Sunderland FC (1998) and Hall v Thomas & Everton FC (2014) have confirmed that a football club does owe a duty to its players in terms of their physical health, even though the Brady claim failed. Those who follow Rugby Union will no doubt be aware of the comments of the recently retired former England captain, Dylan Hartley, that he felt ‘like a piece of meat thrown in the bin’ at the end of his career. Baroness Grey-Thompson advised that she found similar sentiments from other athletes.

It is not a flight of fantasy to envisage that a player facing the premature end to his career due to injury might well look to explore whether his interests were looked after by his employer and the club or the leagues insurer would certainly sit up if such a claim were forthcoming as the loss of earnings claim could well be eye-watering given the reported salaries of the players. Football clubs know that their principal asset (outside of the unquestioning loyalty of fans) is their players. At this difficult time for football clubs with two matches seemingly every week they would be well advised to ensure they have in mind the aims sought by Tanni Grey-Thompson namely that they have their athletes’ welfare utmost in their minds, not least to avoid the spectre of litigation.