Kicking an opponent when he’s down, head butting, elbowing, a vicious kick and even a biting incident by a top footballer like Suarez, we are seeing it not only from recreational and professional athletes in the Netherlands, but also from footballers during the World Cup in Brazil. But where (under Dutch law) does one cross the line between rough sporting behaviour and wrongful act?

The 2014 World Cup

The Italy v. Uruguay group match during the 2014 World Cup in Brazil promised in advance to be a real spectacle. Both teams were favourites to win the group at the start of the World Cup, but contrary to expectations were up against each other in the final group match which would decide who would advance to the round of sixteen along with outsider Costa Rica.

Although in view of the reputations of the two football heavyweights, anyone could expect that the match would include a few fouls and dives, most spectators did not expect star player Luis Suarez’s attack on Giorgio Chiellini in the 80th minute of the game. Unfortunately, excesses on the football pitch, including two-footed tackles, elbowing, head butts and even biting incidents, are not isolated incidents, even in a World Cup event.

FIFA’s power to impose penalties

As an international association, FIFA has the authority to combat serious foul play by penalising players (mainly) in the sporting arena by imposing suspensions. It has this authority because through their national associations and the umbrella international association, under association law players are bound by the FIFA regulations by means of an indirect membership structure.

It is also relevant, however, to what extent such foul play could lead to liability under civil law if the incident were to actually cause (permanent) injury to another player.

Liability law in football under Dutch law

In the Tennis ball judgment it was assumed that during sporting and game situations, there is a higher liability threshold as compared to liability in general. Athletes, in particular those who engage in contact sports, must, during a competition, expect actions from each other which could put them in danger, which actions do not occur in everyday activities. The risk of injury is therefore inherent to sport.

This starting point created by the Supreme Court was first applied to a football-related case in the Natrap judgment of 28 June 1991. In the case that resulted in this judgment, a football player from Drachten kicked by a player from Achilles ‘94 sustained a permanent knee injury.

‘After all, the participants in a sport like football must expect each other to commit actions which are dangerous to a certain extent, and which are provoked by the game, while the participants in society need not expect from each other actions that give rise to a similar danger outside the context of the sport, which actions are therefore usually unacceptable.’

So in order to assume liability, there must be a case of an unforeseen, abnormally dangerous action. It applies here that the mere violation of the rules of the game in and of itself is not decisive. However, this is taken into account in assessing whether a wrongful act has been committed. In the Natrap judgment, the liability of the Achilles ‘94 player was assumed because the ball was not in the vicinity at the time of the foul and the Achilles ‘94 player had therefore directed an abnormally dangerous tackle at his opponent’s knee.

Another (more recent) example follows from lower case law. In the case decided by the district court of The Hague on 6 February 2008, an experienced defender tackled his opponent, who had broken through the defence, even though the ball was already gone. In this action he hit his opponent’s right foot, causing the opponent to sustain an ankle fracture rendering him 80 to 100% unfit for work in the context of the Invalidity Insurance Act (WAO). Here too the district court held that there was no case of sporting skirmish, but a serious foul in a clear-cut game situation. It therefore deemed the defender liable for the damage he had caused to his opponent.

Heat of the competition

In the heat of the competition, therefore, more can and must be tolerated from a fellow athlete than outside of that context. And that was precisely the case in the biting incident involving Luis Suarez. He bit Giorgio Chiellini when the ball was no longer in the vicinity. That was also why referee Marco Rodríguez failed to see the biting incident.

But also in the case of a biting incident ‘in the heat of the competition’, it can firmly be stated – if injury is caused – that this is abnormal behaviour on the football pitch that a player need not expect from his opponent. The threshold for liability can most likely be assumed to have been exceeded in this case.

Settling disputes on the international level

The liability cases above occurred on the national level. Similar questions on the international level will largely be settled outside of court or via the Court of Arbitration for Sport (CAS). In addition, since 2012 FIFA has taken precautions by taking out insurance for inter-country matches which will (largely) compensate any damage suffered by the player and his club. The player will also be insured against any occupational disability and his club will have insurance for any loss it suffers from having to continue paying the player’s salary. Furthermore, the clubs themselves have the option to insure the damage resulting from the loss of any transfer sum because of a player’s occupational disability by taking out so-called transfer value insurance.

By Robin Schrijver