Friday, 22nd September 2023

Torts law and the politics of international sports administration

By ‘Femi D. Ojumu
05 April 2023   |   3:40 am
The concern of the law of torts is civil wrongs. Torts law is interpersonal, intermediating in wrongs between juridical persons, whether natural or corporate entities typically, but not always, excluding contractual disputes.

Gavel PHOTO: iStock

The concern of the law of torts is civil wrongs. Torts law is interpersonal, intermediating in wrongs between juridical persons, whether natural or corporate entities typically, but not always, excluding contractual disputes. Conceptually, the foundation of tortious liability arises, in the main, from A owing B a legal duty of care; wherein A breaches that duty and B suffers a material loss. This is subject to the rider that A’s actions or inactions, directly caused that breach, and that chain of causation was not broken at the time B suffered the material loss. Materiality is in issue because equity, an important component of common law jurisprudence, negates idle gestures!

The emanating legal consequences from A’s infraction of a duty of care to B may include damages payable by A to B, restitution, specific performance or alternative remedies pursuant to an order of court depending upon the unique facts of each case. The locus classicus remains Donoghue v Stephenson (1932) Appeal Cases 562. Briefly, May Donoghue consumed ginger beer manufactured by David Stephenson. The ginger beer contained, a decomposed snail, which Donoghue evidentially confirmed, made her violently ill.

Lord Atkin, in that seminal case, had cause to espouse the ‘neighbour principle’ which has withstood the test of time since in these terms: persons who are “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions in question.” Stephenson, in that case, was held liable in damages for the tort of negligence because although he owed Donoghue a duty of care to ensure the safety and integrity of the product he manufactured, he failed to honour that duty of care.

Torts law is a vast legal subject, which embraces inter alia defamation, malicious prosecution, negligence, nuisance, trespass and vicarious liability. The latter element of torts law, vicarious liability, and how it impacts the politics of global sports administration falls within the purview today’s treatise.

Fundamentally, sports, and by logical derivation, exercise, is an essential element of the physical, emotional, psychological and mental well-being of human beings; whether it is consciously or unintentionally undertaken. Unsurprisingly, Harvard Medical School confirms that exercise “…is the single most important thing you can do for your health. In the short term, exercise helps to control appetite, boost mood, and improve sleep. In the long term, it reduces the risk of heart disease, stroke, diabetes, dementia, depression, and many cancers.”

So, whether it is walking, jogging, playing baseball, cricket, football, lawn tennis, squash, soccer etc, the incontestable evidence is that it is overwhelmingly beneficial to participants. Besides, it is fun, brings people together and has played a crucial role in effectuating moratoriums in internecine wars. The latter point is partly exemplified by the Nigerian Civil War (1967-70), halted for 48 hours so the warring combatants on either side, could watch the greatest footballer of all time, Edson Arantes do Nascimento “Pele” (1940 to 2022); play an exhibition match between his team, Santos FC and the Red Devils (Nigeria’s football team at the time, since reincarnated as the “Eagles”).

The economics of sports are no less startling. A 2021 report undertaken by the UK’s Sheffield Hallam University affirmed that the contribution of Olympic and Paralympic sport to economic development was £21 billion; collectively outperforming the contribution of agriculture, forestry and fishing to the national economy. Although the report excluded football, golf, rugby and tennis because those sports are not considered germane to their sporting nadir, all the same, it established that games support the employment of 784,000 people, whilst generating1.9% overall housing spending. Plus, a 2022 Ernst & Young evaluation of the Premier League football confirmed that it contributed £7.6 billion to the UK economy during the 2019/20 season, notwithstanding the adverse interposing effects of the COVID-19 pandemic for more than three months due to the pandemic. And, the Premier League and component teams generated tax revenues exceeding £3.5 billion to the UK Exchequer in 2019/20. Of that sum, approximately £1.4 billion emanated from Premier League players.

In its Economic Impact of Sports Events in 2022, Business Review, established that the global online gambling and betting industry had a value of $61.5 billion in 2021 with an exponential projection of 86% to $114.4 billion by 2028. Statista forecast a 16.9% increase in its valuation of the North American sports market from $71.06 billion in 2018 to $83.1 billion in 2023 comprising media rights, segmented gate revenues, sponsorships and merchandising. Furthermore, the Business Research Company confirmed that the global sports market grew 5.24% from $486. 61 billion in 2022 to $512.14 billion in 2023.

Clearly therefore, without the performance of elite, in-demand, superb athletes, sportsmen and women around the world, there will be no billion-dollar sports market which, in turn, would harm global economic recovery post-COVID- 19 pandemic, national fiscal revenues and the economic resilience not least given the aftershocks of the extant Russian Ukrainian debacle. And, the billion-dollar sporting industry necessarily seizes the attention of politicians, policy makers and key stakeholders globally because of its criticality to gross domestic and gross national product.

These complex dynamics surface several pertinent issues some of which are highlighted here. Should sportsmen and women, collectively “athletes”, be vicariously responsible for the wrongful actions of the countries they choose to represent where there is no direct evidential chain of causation linking them to the said wrongful actions of those states? What, if any, should be the nexus between politics and sports? How best, can international sports administrations intermediate in these burning complexities? Should sporting excellence be the singular focus of athletes? Does their social conscience evaporate simply because of sporting excellence, which pays their wages and hefty commercial endorsements? In other words, should athletes simply pretend to be completely oblivious, of societal dissonance?

These are huge questions intersecting conscience, subjectively defined morality, geopolitics, ideological bent, the capacity to enforce one’s will, the raison d’etre and power dynamics of international sporting administrations et al. The answers to these posers would therefore depend largely upon the ideological perspectives of respondents and their divergent schools of thought.

For the purposes of this article, the contentions of advocates of complete sporting and political dissonance, ditto vicarious liability (the orthodox school of thought); and those of the (libertarian school of thought), who argue for freedom of expression of sportsmen and women, and the total absence of vicarious liability attaching to them are analysed.

The Orthodox school takes the stance that an aggressive, oppressive and repressive regime should be isolated on the international stage. By logical extension, that practically means that athletes representing their home or adopted countries, governed by regimes characterised as such by their opponents, should be vicariously liable for the repressive actions of the countries they represent. The kernel of this contention is that it is morally reprehensible for such countries to proceed on a “business as usual” basis without legal or moral reprimand which, will inevitably, punish innocent athletes.

Proponents of this school also utilize the deterrence argument. That is, setting clear red lines against which such regimes must not traverse, otherwise, it could invoke sporting sanctions, economic blockades or, indeed, military action. Advocates of this school include the United States, Britain and the European Union. The most recent demonstration of the execution of this strategy is the Russian vs Ukraine war launched by the former in February 2022. Upon that Russian invasion, the All-England Club and Tennis Club Association banned Russian players from participating in the Wimbledon 2022 tournament – ditching political neutrality and effectively denying those players the ability to earn their living- given the actions of the Russian government over which affected athletes had zero control!

The Libertarian school adopts the contrarian position. That is, it is legally and morally unjustifiable to hold innocent athletes legally and morally culpable for the actions and inactions of the governments of their home or adopted countries. In simple terms, this school considers the vicarious liability argument completely baseless. The inference therein is that athletes are “independent contractors” who work, by playing sports for their living, and like millions of other workers around the world on a daily basis, they should earn their income freely. Afterall, if elite footballers XX, in country Y, say, are not vicariously liable for the bloody regime change which toppled a democratically elected government in year K, why should innocent Belorussian Russian athletes; they are not political actors. The crux of this argument is that there should be clear blue water between politics and sports and athletes should not be used as “collateral damage” in geopolitical tensions between nation states.

Advocates of this school include the International Olympic Committee (IOC), some African and Asian nations. They argue that there are over 60 ongoing wars in different parts of the world and it would be hypocritical for international sporting authorities to adopt a negative stance to one conflict and not to all the others. The IOC Charter, for instance, establishes the criticality of political neutrality in sports and considers the practice of sports as a human right. Relatedly, the World Tennis Association fined the English Lawn Tennis Association £820,000 in December 2022 for banning Russian and Belarussian players from the Wimbledon earlier that year. That act evidenced the point that sports must be devoid of political interference.

Summing up, there are relative merits and demerits in the orthodox and libertarian positions. The key points to emphasise are that vicarious liability attaching to innocent sportsmen and women earning their keep by participating in sporting activities globally is a blunt instrument against oppressive regimes. It targets the wrong people and is in violent conflict with key principles of the Olympic Charter appertaining to political neutrality and the human rights of athletes to practice their chosen sports. Does this position sanction the conduct of oppressive regimes? No!

Political isolation, economic blockades, export and re-export bans, targeted sanctions against regime officials are part and parcel of the diplomatic enforcement toolkit. Innocent athletes should be free to excel and sparkle in their chosen sports, earn their livelihoods, help bring joy to a grim world and unite nations!

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.