From June 11 to July 11, 2021, the European Championship (EC) took place. The mood was good with the football commercials from various supermarkets and the orange flags that were hung everywhere in the Netherlands.
But what happens if a footballer gets injured during such a game? In the case of a sporting event, there is a sports and play situation. If damage is sustained during sports, there may be a right to compensation. However, there is a higher threshold for establishing liability in sports and play situations. In such situations, people are aware that there is a greater chance of sustaining injury. The risk of injury is accepted by participating in the sport or game. For example, it is not uncommon for a footballer to sustain an injury during a game due to a kick from a teammate.
Injuries sustained during sports will only lead to compensation if there is a “gross violation.” The harmful act then goes beyond the rules of the game. An example is when the referee on the football field blows a whistle to end the game. If an opponent trips up the footballer after this whistle, the footballer should not have expected this. The sports situation is over at that point.
Recently, another sports and play case was brought before the Supreme Court. In 2005, Trienko Smit was tackled so hard by his opponent during a football match that his leg eventually had to be amputated. Mr. Smit then held the opponent who had tackled him liable. For years he had hoped for compensation, but both the court of appeal and the Supreme Court rejected this.
The Arnhem-Leeuwarden Court of Appeal considered the following. The court first established that the damage of Mr. Smit was caused by the tackle of the opponent from the left. Now the question remained whether there was a tort. The court followed the established case law of the Supreme Court on sports and play situations. That is to say that tortious conduct is less likely to be assumed in the event of sports and play situations. In addition, a single violation of the rules of the game does not immediately lead to a tortious act. Ultimately, the court’s finding was that Mr. Smit’s injury was caused by a violation by the opponent. However, this violation was not so excessive that there was a tortious act.
The Supreme Court agreed with the reasoning of the court of appeal. The complaints about the judgment of the court of appeal could not lead to the annulment of that judgment. The Supreme Court did not have to motivate its judgment, as this did not serve the interest of legal unity or development. As a result, the court of appeal’s ruling remained in place.
Therefore, because there was a sports and play situation, the damage-causing party – the opponent – could not be held liable. There was no gross violation. The ruling of the court of appeal and the Supreme Court confirms that it is difficult to establish liability in a sports and play situation.
Of course, it is not impossible to hold your teammate liable in a sports and play situation. It was mentioned earlier that liability can be successful in the event of a gross violation. An example of this is the case of the footballer Bouaouzan. Bouaouzan gave his teammate a “horror tackle.” Instead of performing the tackle by sliding, Bouaouzan put his sliding in with a straight leg forward and at about half a meter height. This, while the ball was on the ground. Bouaouzan has thereby accepted a significant chance of causing serious bodily harm. His teammate will most likely never be able to walk again. Ultimately, Bouaouzan was also convicted of aggravated assault.
While it may be difficult to establish liability in a sport and play situation, it is certainly not impossible. Always the circumstances of the case must be considered.
Are you or do you know a victim of damage caused in a sport and play situation? Then contact Elfi Letselschade Advocaat for a free consultation.
