There is hardly a more forceful contest than that performed by an English and French team on a rugby pitch. The rivalry between the old foes is at its highest when played out on the field of play. But last week’s news that Phil Greening, England’s former international player, had been ordered by a French court to pay Aurelién Rougerie, a French international, EUR 40,500 (US$59,100) as compensation for the injuries caused to the latter by the former on the field of play are a dramatic extension of the documented enmity.5 years ago, in the course of a game between Wasps (of England) and Montferrand (of France), Rougerie suffered a severe injury to his throat that required 3 surgeries and put him out of the game for more than 4 months. Allegedly, the injury resulted from a hand-off (a technical feature of rugby according to which the attacking player fends-off the attempted tackle by the opposing player by extending his arm, with an open hand, and brushing aside the would-be defender) by Phil Greening. I was unable to find any footage of the incident on the web. However, it generated significant dissent amongst commentators and crucially, citing commissionaires at the game found no evidence on which to pursue any disciplinary action against Greening on the basis of the available footage. It is always risky to deliver an opinion on something you have not directly seen but in all likelihood this was a borderline case.
Even though common law and continental jurisdictions have gone about these sorts of cases in different fashion (following different legal paths and standards), it can be safely said that, in general, the judicial powers have accepted that participants in any sport are bound by a duty of care. Moreover, it has been widely accepted that the specifics of each sport and the environment created by the rules of the game (namely in contact sports) are fundamental in creating a particular environment, which must be taken into account when establishing any thresholds. Where courts have not been so unanimous is in finger-pointing the breaching conduct leading to a “guilty” decision. As a matter of principle (especially because the incident hereunder took place during a rugby match, a highly aggressive sport) let us consider reckless disregard as the applicable standard for the ascertainment of a breaching conduct.
Taking the foregoing into account, can we readily accept such a judgment? It is impossible to say with any degree of certitude whether Greening’s hand-off can be deemed a fair reflection of the rules of the game, even if performed with a level of technical deficiency; moreover, it is impossible to say whether his technical gesture was one that could be expected from a rugby player, a naturally aggressive sort of athlete playing a contact sport, who is required to act accordingly, even if sometimes against the rules (that’s why fouls exist). Or was it an absolutely unreasonable, nonsensical, foolish, absurd, action that goes beyond the foul and into an area of civil liability? In contact sports such as rugby Greening’s hand-off would have to be something bordering the ludicrous to merit such an award. The French court has the benefit of doubt because it reviewed the incident and I did not.
One final note. Rugby authorities and players alike have been very loud in their cries against the decision, claiming it will have repercussions and hinting it may even change the game. I doubt this decision has the potential to create international havoc but at least in France players will be thinking twice before upping their aggressiveness levels in a hand-off or even a tackle.
Even though common law and continental jurisdictions have gone about these sorts of cases in different fashion (following different legal paths and standards), it can be safely said that, in general, the judicial powers have accepted that participants in any sport are bound by a duty of care. Moreover, it has been widely accepted that the specifics of each sport and the environment created by the rules of the game (namely in contact sports) are fundamental in creating a particular environment, which must be taken into account when establishing any thresholds. Where courts have not been so unanimous is in finger-pointing the breaching conduct leading to a “guilty” decision. As a matter of principle (especially because the incident hereunder took place during a rugby match, a highly aggressive sport) let us consider reckless disregard as the applicable standard for the ascertainment of a breaching conduct.
Taking the foregoing into account, can we readily accept such a judgment? It is impossible to say with any degree of certitude whether Greening’s hand-off can be deemed a fair reflection of the rules of the game, even if performed with a level of technical deficiency; moreover, it is impossible to say whether his technical gesture was one that could be expected from a rugby player, a naturally aggressive sort of athlete playing a contact sport, who is required to act accordingly, even if sometimes against the rules (that’s why fouls exist). Or was it an absolutely unreasonable, nonsensical, foolish, absurd, action that goes beyond the foul and into an area of civil liability? In contact sports such as rugby Greening’s hand-off would have to be something bordering the ludicrous to merit such an award. The French court has the benefit of doubt because it reviewed the incident and I did not.
One final note. Rugby authorities and players alike have been very loud in their cries against the decision, claiming it will have repercussions and hinting it may even change the game. I doubt this decision has the potential to create international havoc but at least in France players will be thinking twice before upping their aggressiveness levels in a hand-off or even a tackle.
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