Coaching, Sport and the Law

A Duty of Care

Neil Partington

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000389357
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto dei media e dell'intrattenimento

The interdependent coach-athlete relationship represents the most fundamental instance of a duty of care in sport. This book defines, analyses and clarifies the duty of care incumbent upon sports coaches and identifies important recommendations of real-world significance for coaching practice.

Given the dynamic relationship between coaching, sport and the law, it is imperative that coaches have an informed awareness of the evolving legal context in which they discharge their duty of care. Detailed analysis of a coach's duty of care has so far been lacking. The book addresses this gap by being the first to critically scrutinise the concept of duty of care in the specific context of sports coaching. Sustained analysis of the developing case law allows the scope and boundaries of the particular duties demanded of coaches to be rigorously examined. The legal principles and court decisions discussed relate to coaching delivered in a wide range of individual and team sports, at both amateur and professional levels of performance, and include common scenarios and challenges frequently encountered by sports coaches globally.

By adopting an interdisciplinary approach within a broader sociolegal methodological framework, this book's detailed analysis and original insights will prove highly instructive for practising coaches, coach educators, and national governing bodies of sport. It also offers extremely valuable insights for students, teachers and practitioners involved in sports law, sports coaching, sports ethics, tort law, sports policy and development, sports studies and physical education.

PART I
Key concepts

1
DISTINGUISHING DUTIES OF CARE OF SPORTS COACHES

Introduction

Duty of care considerations are under unprecedented scrutiny in the context of sport.¹ Coaches owe a duty of care to athletes. This duty of care may involve legal, moral and ethical considerations. It was argued by Baroness Tanni Grey-Thompson in the Duty of Care in Sport: Independent Report to Government’ (DoC in Sport Report) in 2017 that sporting success:

1 See, for instance, Baroness Tanni Grey-Thompson, ‘Duty of Care in Sport: Independent Report to Government’, Department for Digital, Culture, Media & Sport, 21 April 2017 (DoC in Sport Report) 4; D Roan, ‘Was 2017 the Year British Sport Lost Its Way?’ (BBC News, 29 December 2017) <www.bbc.com/news/uk-42353175> accessed 9 November 2019.

should not be at the expense of the Duty of Care [owed] towards athletes, coaches and others involved in the system. . . . [I]t feels timely for the sport sector to consider Duty of Care in its fullest sense.²

2 DoC in Sport Report (n 1) 4. In December 2015, as part of the Sporting Future strategy, the Minister for Sport asked Baroness Grey-Thompson to conduct an independent review into the Duty of Care sport has towards its participants.

The DoC in Sport Report adopted ‘a deliberately broad definition of “Duty of Care”– covering everything from personal safety and injury, to mental health issues, to the support given to people at the elite level’.³ High-profile controversies about a breach of duty of care in various sports, and accusations of a culture of bullying, continue to come to light.⁴ The growing number of athlete complaints of this nature has also resulted in coaches being made to feel ‘vulnerable’, prompting leading coaches in Britain to form an association to protect their interests.⁵ In these circumstances, practical reasoning determining coaching conduct, performance goals and what sort of person or coach to be may be shaped by both law and morality. This is the case because, as argued by Cane, ‘both law and morality are about right and wrong, good and bad, virtue and vice. These contrasts are “normative”: they express value judgments’.⁶

3 Ibid.

4 J Anderson and N Partington, ‘Duty of Care in Sport: Time for a Sports Ombudsman?’ (2018) 1 International Sports Law Review 3, 7–8.

5 M Dickinson, ‘Coaches Unite Over Bullying’, The Times, 21 November 2018 <www.thetimes.co.uk/article/coaches-unite-over-bullying-by-forming-new-group-c7wp7jnxx> accessed 9 January 2019.

6 P Cane, ‘Morality, Law and Conflicting Reasons for Action’ (2012) 71(1) CLJ 59, 60.

Problematically, whilst it has been suggested by Lord Steyn that ‘[t]he law and morality are inextricably interwoven’,⁷ Hart’s seminal jurisprudential discussion of the nature of morality⁸ contends that ‘there is no necessary connection between law and morals’.⁹ At first glance, this seems somewhat contradictory and confusing, not least for non-lawyers making repeated value judgements about what might constitute reasonable coaching practice. For instance, is a coach’s duty of care, derived from the tort of negligence, plainly informed by law, essentially informed by morality or informed by a combination of both law and morality? At present, legal scholarship tends to approach the issue of a coach’s duty in broad terms,¹⁰ often with an emphasis on school sport,¹¹ thereby offering only limited detailed analysis of the extent of a coach’s duty of care. The intersection between the law of negligence and sports coaching is also seldom discussed in the extant academic literature on sports coaching.¹² This misses important emerging complexities that can only be understood by an analysis that highlights the necessity of separating legal and moral duties of care. In order to achieve this sort of analysis, the one undertaken in this chapter is set within the context of the classic jurisprudential debate surrounding the relationship between law and morality. By drawing on some of that scholarship, existing gaps in the duty of care in sport literature are addressed, with the nuanced arguments developed also being of more general application and relevance, particularly in the mainstream field of professional negligence.

7 Smith New Court Securities Ltd v Scimgeour Vickers (Asset Management) Ltd [1997] AC 254 (HL), 280. Also see, T Honoré, ‘The Dependence of Morality on Law’ (1993) 13 Oxford J Legal Stud 1, 3.

8 P Cane, Responsibility in Law and Morality (Oxford, Hart 2002) 6.

9 HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1959) 71 Harvard Law Review 593, 601 (footnote).

10 E.g., J Anderson, Modern Sports Law: A Textbook (Oxford, Hart 2010) 248; M James, Sports Law (2nd edn, Basingstoke, Palgrave Macmillan 2013) 92–97; S Greenfield et al., ‘Reconceptualising The Standard Of Care In Sport: The Case Of Youth Rugby In England And South Africa’ (2015) 18(6) Potchefstroom Elec. L.J. 2183.

11 E.g., M Beloff et al., Sports Law (2nd edn, Oxford, Hart 2012) 146–48; D Griffith-Jones, ‘Civil Liability Arising Out of Participation in A Lewis and J Taylor, Sport: Law and Practice (2nd edn, Haywards Heath, Tottel 2008) 737–42; E Grayson, Sport and the Law (3rd edn, Haywards Heath, Tottel 1999) 190–99; N Cox and A Schuster, Sport and the Law (Dublin, Firstlaw 2004) 230–47; H Hartley, Sport, Physical Recreation and the Law (Abingdon, Routledge 2009) 55–63.

12 N Partington, ‘Sports Coaching and the Law of Negligence: Implications for Coaching Practice’ (2017) 6(1) Sports Coaching Review 36, 37.

The chapter begins by discussing the context in which the concepts of law and morality, broadly applied, are critically explored. In cautioning against conflation of the legal and moral duties of coaches, since these vary in scope and content, the chapter next conducts a more detailed consideration of the concepts of duty of care and standard of care. A more precise understanding of this area of the law, since the seminal case of Donoghue v Stevenson,¹³ allows distinctions between legal and moral duties of care to be better understood and critiqued. Following this, in considering the subsequent development of the law of negligence, analysis of its modern application reveals a significant shift away from its origins as a general moral principle. Accordingly, the no-duty-to-assist a stranger in distress at common law is posited as a forceful illustration of the crucial distinction between moral and legal duties of care. The intricacies and interrelationship between these respective duties is then subjected to sustained treatment in the specific circumstances of sports coaching. This reinforces how the doctrine of assumption of responsibility has the potential to bring what might otherwise ought to be distinct moral duties, within the confines of the standard of care required of coaches, thereby creating legal obligations. Ultimately, this unique vantage point proves inst...