October 21st 2016

Dr. Rosmarijn van Kleef will be speaking at the 'Football, Education, Conference’ in Glasgow
Dr. Rosmarijn van Kleef will be speaking at the ‘Football, Education, Conference’ in Glasgow

Our latest ‘Guest Blog’ comes from leading expert on Strict Liability in Sport, Dr. Rosmarijn van Kleef. She will be speaking at the ‘Football, Education, Conference’ being held today in Glasgow. The conference is being arranged by the University of West of Scotland and sponsored by Nil by Mouth, Sense over Sectarianism and Football Against Racism Europe. In this article Dr Van Kleef offers a European perspective on the ongoing debate about introducing strict liability principles into Scottish Football.

Strict liability of football clubs – a view from Europe

While reading up on the preparations of a new parliamentary bill aiming to tackle fan violence in Scottish football, my first feelings were those of surprise. It struck me that, apparently, Scotland still has to catch up with the rest of Europe where strict liability of football clubs is widely accepted and applied by both national and international football governing bodies.

These bodies, including UEFA and the English FA, have created specific rules that hold clubs directly liable for the behaviour of their supporters. If disturbances occur, possible sanctions can include fines, playing matches behind closed doors, or even exclusion from tournaments. The most famous example is perhaps that of the Dutch club Feyenoord, who were excluded from the UEFA Cup following riots before and during their away match to AS Nancy, in France.

The rationale for this type of liability is that in the absence of a direct legal relationship with supporters, sanctioning the clubs is the only means for governing bodies to try and prevent disturbances. From a legal point of view, this liability is founded and legitimised in the freedom these organisations are granted to design their own regulatory system.

When the first cases of strict liability were reviewed in Europe a lot of criticism was voiced. Among other arguments, the strict liability rule was said to breach the principle of ‘no liability without fault’. In civil law, however, there are a great number of exceptions to this principle. Most importantly, liability without fault is accepted in case of an overriding public interest – such as the fight against violence in football. However, up until now, the Scottish FA has not been able to adopt strict liability rules with the clubs – unsurprisingly – having voted against it in the past. Only time will tell whether ignoring society’s call for action and avoiding taking responsibility was the best course of action.

Aside from bringing Scottish football rules up to ’industry standards’, the new parliamentary bill also gives Scotland the chance to consider regulating civil liability of the clubs – an issue which is often overlooked, also in Europe. It is obvious that fan disturbances often result in both injuries and property damage. Although clubs are always at risk of being held liable for damage that occurred on their stadium grounds based on negligence, by introducing strict liability in civil law it would be easier for victims to demand compensation from a club if the primary offender cannot be found.

At first glance and not unlike the debate on disciplinary liability, this might seem unfair to the clubs. However, similar forms of liability already exist. For example, if one gets hurt by an exploding coffee machine, the manufacturer of the machine will be strictly liable based on product liability rules. The reasoning behind strict liability is that whoever benefits from a dangerous activity should also bear the related losses.

On one hand, football clubs that participate in league and other official matches benefit from hosting these events – financially and in other ways. On the other hand, fan disturbances are, seemingly, an inherent and foreseeable risk of participating in high level football. As such, the organisation of football matches potentially creates a genuine public safety risk. The difference between the manufacturer and the club therefore seems to be the way they are viewed by society. We see no problem in a business being responsible for negative side-effects of their main activities. Somehow, professional football clubs touch a different nerve.

More than anything, the ultimate decision as to whether football clubs should be held strictly liable for damage caused by their supporters’ misconduct is a policy decision about who (or perhaps whose insurer) should carry the burden of compensating the forthcoming damages. Until then it is important to remember that liability of football clubs for fan disturbances is not defined in terms of culpability, but rather in terms of responsibility.

Dr. Rosmarijn van Kleef works as a sports strategy consultant in Lausanne, Switzerland. She graduated from Leiden University and the University of Neuchâtel with her PhD thesis on ‘Liability of football clubs for supporters’ misconduct’.