This timely book is the first to critically examine the doctrine of vicarious liability in the context of the sports industry.
Drawing on theoretical, empirical and interdisciplinary research, the book focuses on the close connection test at stage two of vicarious liability, highlighting how vicarious liability could be used to hold sports employers strictly liable for a wide range of on-the-field and off-the-field harms committed by their athletes. It considers the extent to which vicarious liability might be applied to clubs and sporting organisations for personal injuries and racial abuse suffered by participants during competition, and examines whether employers in the sports industry ought to be held vicariously liable for the sexual assault of young athletes and women away from the field.
This book is important reading for any student, researcher or practitioner interested in sports law, tort law, private law theory, socio-legal studies, jurisprudence, gender studies and sports ethics.
1. Introduction
Setting the Ground: Why Assess Vicarious Liability in Sport?
Why Vicarious Liability?
Why Sport?
Scope
Structure
2. Vicarious Liability for On-the-Field Acts: Personal Injuries
Introduction
The Negligence-Intentional Divide
Negligent On-the-Field Acts
Intentional On-the-Field Acts
Vicarious Liability and the Deterrence of Violent Play
Direct Liability: A More Suitable Cause of Action?
The Practicality of Deterrence
Vicarious Liability, Enterprise Liability and the Problem with ‘Playing Culture’
Abandoning Playing Culture
A Greater Role for Benefit Enterprise Liability
Distinguishing Consent and Risk
A Normative-Empirical Dichotomy
Potential Objections to a Normative-Empirical Dichotomy
Conclusion
3. Vicarious Liability for On-the-Field Acts: Responding to Racism
Introduction
Racial Abuse in Sport: Insights from Critical Race Theory
Interdisciplinarity and the Limits of ‘Legal’ Research
Enterprise Risk and Critical Race Theory
Vicarious Liability for On-the-Field Racism: Potential Causes of Action
Vicarious Liability for Common Law Torts: Negligence, the Rule in Wilkinson v Downton and Trespass to the Person
Statutory Vicarious Liability: Equality Act 2010
Common Law Vicarious Liability for Breach of a Statutory Duty: Protection from Harassment Act 1997
Time for a Sport-Specific Tort of Hate Speech?
Racial Slurs as a Civil Wrong: Discrimination or Harassment?
A Sport-Specific Remedy?
Conclusion
4. Vicarious Liability for Off-the-Field Acts: A Risk-Based Approach to Hazing and Sexual Assault
Introduction
Clarifying the Contours of the Risk-Based Analysis: Four Introductory Points
Sexual Abuse of Rookie Athletes
The Relevance of Masculinities Studies
Empirical Statistics and Jurisdictional Sensitivity
Sexual Assault of Women
The Relevance of Feminist Legal Theory
Further Considerations: Empirical Data and Methodological Issues
Conclusion
5. Vicarious Liability for Off-the-Field Acts: Role Models, Disrepute Clauses and Concluding Guidance
Introduction
The Futility of a Role Model-Based Approach
Disrepute Clauses and the Close Connection Test
The Practical Significance of Disrepute Clauses: Sport and Beyond
The Theoretical Significance of Disrepute Clauses: Benefit Enterprise Liability
Concluding Guidance
Physical or Non-Contact Sport
Team or Individual Sport
Popularity of the Sport
Tortfeasor’s On-Field Position
Type of Act
Benefit to the Employer
Applying the Guidance
Conclusion
6. Conclusion
Biography
James Brown is a Lecturer in Law at Manchester Law School, Manchester Metropolitan University, UK. His research interests lie in the areas of sports law, tort law and private law theory, and he has published several articles on these issues. James holds a PhD in Law from the University of Sheffield and an LLM (with Distinction) in Sports Law from Nottingham Trent University.
“The vibrancy of vicarious liability as a doctrine in the law of tort cannot be denied. James Brown’s monograph takes us to the sports industry and asks some fundamental questions about the scope of this doctrine in relation to the torts of athletes both on- and off-the-field, which has not previously received in-depth analysis. By adopting a theoretical, interdisciplinary and empirical approach to the doctrine, Brown argues that a continued expansion of the doctrine is both defensible and normatively desirable. This is a valuable contribution to tort law theory, but also related disciplines such as sports law and gender studies.”
-Professor Paula Giliker, University of Bristol.
“James Brown’s Vicarious Liability in the Sports Industry is a groundbreaking and fascinating analysis of a novel and important issue. Whilst the discussion is centred on the many aspects associated with vicarious liability in the sporting industry, the legal debates considered so expertly by Brown have a much wider application to many aspects of society. It will be an important and useful resource for students and academics alike.“
-Professor Jodi Gardner, University of Auckland.
