Date: Wed, 11 Oct 2006 15:50:04 +0100

From: Michael Jones

Subject: Football clubs

Is there not an obvious potential for a conflict of interest, as was very publicly on display this summer when the issue was whether Wayne Rooney had sufficiently recovered from injury to play for England in the World Cup when coming back from injury too soon might delay his long term recovery (to the consternation of his employers, Manchester Utd)?

Clubs want their best players to play, particularly in crucial games.

Players may also want to play, if they possibly can, but this may prolong recovery from minor injuries (if they are carrying the injury into a game) or have long term consequences for their health (e.g. aggravating a joint injury thereby increasing the risks of developing osteoarthritis in the long run - by which time they will have retired and the club no longer has any interest in the player's health, unlike the player himself).

On conflict of interest, see what Rix LJ says in relation to the contract claim:

[46] In my judgment, however, the danger of a conflict of interest between a sports employer and a sportsman, all the more important where the sportsman may think that his principal interest is tied up in his soonest possible availability to his employer, must loom large. It militates against implying a contract with the employer rather than with the patient, or with the employer as well as with the patient.

And in relation to the negligence claim:

[59] I do not consider that there was any assumption of responsibility here by Mr El-Safty to advise the Club. This case is quite unlike the typical case where an adviser knows that his advice will be relied on by third parties with relevant financial interests. The immediate interest here is medical, not financial. WBA is interested, but principally as a good employer not as an investor in player contracts, and it appears on the scene, in the person of Mr Worth, in the form of a referring health professional, and not in a managerial or business context. Moreover, the question of conflicts of interest arises here again to emphasise that Mr El-Safty's concern is or ought to be not only primarily, but exclusively, with his patient's well-being, and not with the Club's financial circumstances. In such a case I do not see how an assumption of responsibility to the Club can easily arise.

And out of interest consider also the views of Rix LJ and Mummery LJ on the insurance position:

Rix LJ: [63] Moreover, if it is permissible in such a context to think of where insurance for such liabilities naturally lie, I would think that whereas insurance against liability to patients for the consequences of negligent medical advice or treatment would naturally lie with treating doctors, insurance against financial loss arising from the ill-health of employees, even where that is increased or exacerbated by third parties, naturally lies with their employers.

Mummery LJ at [84]: If insurance is a relevant consideration, which realistically it should be, it would seem more reasonable in a situation of this kind to expect the Club to insure against suffering the financial loss of the kind claimed against Mr El-Safty than to expect him to insure against additional loss of this kind suffered by someone other than the patient.

Newcastle Utd are reportedly claiming £20 million from the English FA for the injury sustained by Michael Owen at the World Cup (which was not caused by the FA, but was simply an unfortunate accident). Presumably Newcastle Utd are insured and so are the FA. And if they are not, whose fault is that?

There is a nice comment from Rix LJ in the context of the contract claim:

WBA recognised that treatment depended upon [the player's] consent. His agreement was therefore necessary, and the situation could not therefore be presented as simply one where WBA was buying in medical services for him, as though he were a race-horse. Thus reference to WBA's players as being Club assets, because the value of their contracts are reflected in the Club's balance-sheet, is ultimately nothing more than a metaphor.

Race-horses cannot have contracts with their vets and do not consent to treatment.

Having seen quite a few Premiership footballers over the years, I'm not sure that the analogy with race-horses is quite accurate. Donkeys maybe ...

Regards,

Michael

-------------------------
Michael A. Jones
Professor of Common Law
School of Law
University of Liverpool
PO Box 147
Liverpool
L69 3BX
Tel: 44 (0)151 794 2821
Fax: 44 (0)151 794 2829
-------------------------

-- On 11 October 2006 14:43 +0100 John Murphy wrote:

Re. potential conflicting interests:

I don't know about declaring a player fit to play when he is not being a good example of conflicting interests, but I think they could well exist.

If memory serves, didn't Bob Marley die of cancer that first appeared in a toe after an injury to the toe in a football game?

Well, suppose that Marley was a professional football player and his club paid for him to receive medical advice and treatment. What would happen if he went to the doctor with his dodgy toe, good and early and the doctor said:

"If we amputate the toe now, the cancer won't spread and kill you. However, there's a 98% chance that if we give you proper treatment (chemo, or radiotherapy or whatever), there's every chance you will make a full recovery".

Let's suppose, too, that

(1) our player is a bit thicko [I know I'm stretching your imaginations here], and
(2) that he can't work out the pros and cons of either option for himself, and
(3) that the club makes it clear that they are delighted there is a near-certainty that, with treatment, the player can make a full recovery.

What should the doctor advise here? And in advising the player should he factor in the fact that the club is paying the bill and would like the player to have treatment?

I dunno ....

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