Playing football is simply not cricket - issues with athletes’ insurance against training and warm-up injuries following the Rory Burns case

Published 04 February 2020 By: Nina Goolamali QC, Luka Krsljanin

Those who avidly follow cricket would be forgiven for having a “groundhog day” moment when the news broke[1] on 2 January 2020 that Rory Burns had injured his left ankle playing football in practice on the eve of the second Test in South Africa. Burns, who was in very good batting form, was replaced by Kent’s Zak Crawley, which meant the loss of a key player at the top of England’s batting order, not just for the rest of the Test, but for 4 months. The immediate fallout from the injury has seen England ban the squad from playing football, although how long the ban will subsist and whether it will trickle down to county cricket level long term remains unclear.

The incident may be unfortunate, but it is not uncommon. Tim Wigmore, in the Telegraph, made a list of “Four of England’s stupidest injuries.”[2] It makes grim reading as 2 out of the 4 incidents arose out of playing football. In 2018 Jonny Bairstow twisted his ankle playing football during training on the ODI tour of Sri Lanka, leading to him being ruled out of the last two ODIs and the First Test. Much earlier in 2009, Joe Denly was injured after a tackle by fellow batsman Owais Shah. Andy Flower, England’s coach at the time, reacted by banning football for a period. And the problem does not just lie in domestic cricket. In 2005, Glenn McGrath sustained a serious ankle injury[3] when he trod on a stray cricket ball left on field whilst he was playing a game of touch rugby in warm up for the Second Test against England.

Aside from re-igniting the debate about the merits of allowing competitive cricketers to play football in practice sessions, this fresh incident raises interesting questions about liability for rehabilitation costs and the potential insurance implications of injuries sustained in training and warm up sessions. Accordingly, this article examines some of the key points for teams and players to be aware of. Specifically, it looks at the following questions:

• Do team policies cover training injuries? • What does “training” include? o The importance of making specific disclosures o Official training vs. informal “kick-arounds” • Liability for over-zealous or intentional tackles • The England Cricket Board’s insurance schemes • Summary Insurance and liability for training injuries

Do insurance policies usually cover training session injuries?

A question of central interest to lawyers, players and teams is who should foot the bill for an injury sustained in these circumstances which may lead to a substantial period of loss of earnings and significant treatment/rehabilitation needs?

Cricket clubs will often purchase bespoke sports personal accident and loss of earnings policies that provide cover if the player is involved in an accident “whilst participating in the sport(s) defined in the insurance schedule…”.

In this case, cricket would be the named sport, but the accident occurred whilst the player was playing football. However, plainly “participating in the sport” is not limited solely to competitive cricket matches but would be expected to include training for the sport; training obviously being part and parcel of performing sports.

What does “training” include?

Would the definition of “training” be sufficiently wide for the policy still to respond in these circumstances? As a matter of law, when interpreting insurance contracts, words must be given their natural and ordinary meaning. There is a reasonable argument that any physical activity performed by the team as a group must fall within the definition of training.

The importance of making specific disclosures

The level of disclosure may be crucial. If the insured has disclosed the activities that will be included in training, then cover is more likely to be provided. Travel insurance policies commonly exclude “hazardous activities”. The case of Quantum Processing Services Co v Axa Insurance UK Plc[4] concerned a travel insurance policy. Hazardous activities in general were excluded under the policy, but when the holidaymaker had disclosed that he was going scuba diving, the insurance company had agreed to cover him for this, without telling him that in fact they would not include cave or solo diving. The court held that he was covered when he went cave diving, as the insurer had not given him any limitation as to what he could do as a diver, so the policy only made sense if the general conditions were read in context as covering all scuba diving. Official training vs. informal “kick-arounds”

One critical issue in the Burns’ case will be the precise circumstances in which the football game was arranged: was it at the coach’s behest (or tacitly permitted); or was it an informal “kick-around”?

If it was an informal kick-around, then an employer’s policy may not help. The case law on injuries sustained by employees when competing in sporting ‘away days’ organised by their employers is insightful on this point. In R v National Injuries Compensation Board Ex P. Michael[5] and Faulkner v Chief Adjudication Officer[6], the Claimant police officers sustained injuries in the course of playing football for the police force’s football team. The Claimants were not obliged to play (under their contracts of employment) but there was a cultural expectation that they would do so: “none of this is, in strictness, compulsory. But a young man looking for promotion ought to play for the force when he can. If he goes off and does other things, it would do him no good” (Michael, p.112). They sought to claim against their employers who had organised the football matches. The Court rejected the argument that the employer was liable: “the sole question is whether this accident arose “in the course of his employment.” To my mind it did not. It was no part of his employment to play in this game of football. He was playing in his off duty time on his rest day. He was in no different position from the bank clerk.” (Lord Denning MR).

On the other hand, if the training was organised, and there was no realistic opt-out, then the player is more likely to be covered. Training for cricket matches must by implication be included within the contractual definition of activities covered. If the essential element of training is that it is an activity (or activities) promoted and supervised by the coaching staff for the purposes of preparing for competitive matches, the extent to which a particular activity was ‘officially’ authorised or encouraged by coaching staff (which would suggest it was seen as a legitimate form of enhancing the team’s physical or mental performance for cricket) may be significant.

There are also general conditions applied to such insurance policies which usually include the clause “You must exercise reasonable care to prevent accident, injury, loss and damage…” Compliance with this condition would entail a greater degree of supervision of the “football match” part of the training than presently appears to be the position.

Over-zealous or intentional tackles

Would the policy respond if the injury was suffered during an over-zealous tackle during an informal football match? Commonly, insurance policies exclude liability for intentional tackles: see for example Elliot v Saunders and Liverpool FC[7], in which the Claimant was required to mount a claim in negligence since battery was excluded from the relevant insurance policy. This is also the approach taken in the policy currently offered by Bluefin Sport, The FA’s licensed broker, which includes the following exceptions:

• • Assault, battery or any intentional or pre-meditated or malicious or deliberate violence, criminal act or acts or intent to cause harm or gross negligence. • • Actions of a player whilst under club, league or association suspension.

• • Hazardous activities

Whether or not the game of football amounts to a hazardous activity may again depend on the degree of vigilance and/or intervention on the part of coaching staff to ensure safety and compliance with the rules of football. The England Cricket Board’s insurance schemes

The ECB operates various insurance schemes[8]. Whilst it is not clear whether ECB insurance is engaged in Rory Burns’ case, the ECB’s insurance framework will be critical to a large number of injuries sustained by cricketers.

ECB-affiliated cricket clubs are permitted to select particular types of cover for different eventualities. Interestingly, the ECB suggests[9] that it is a pre-requisite for ECB membership for a club to have public liability insurance, but it does not appear that personal accident insurance – that is, insurance in connection with injuries that may be sustained by players – is mandatory. It may be noted that, as discussed in a recent LawInSport article, World Rugby’s Regulation 23 imposes stringent compulsory insurance including in connection with the welfare of players (for more on which, please see this article[10]). Likewise, The Football Association has, since 2013, operated its National Game Insurance Scheme, requiring all clubs playing 11-a-side football to hold insurance via its authorised brokers; its preferred broker Bluefin Sport estimated in 2016[11] that it provided cover to more than 14,000 adult teams, thousands more youth sides and about 200,000 players.

Nonetheless, the expectation underlining the ECB’s ‘Extra Cover’ Insurance Schemes[12] is plain: the expectation is that clubs, rather than individual players, will hold any relevant insurance policy. As to the scope of cover, the ECB’s insurance scheme is carefully worded and its purpose clear. The introductory section of the Scheme documentation refers to the scope of insurance as follows:

“Cricket Clubs may select from this range of cover specifically designed to cover their risks and liabilities, all in connection with the recreational game.”[13] [original emphasis]

The Personal Accident policy is defined as follows.

“The cover provides benefits to club members, players, umpires and scorers for accidental bodily injury whilst engaging in official club activities, including:

• • cricket matches, practice matches, official practice or coaching session organised or attended by the club

…

• • direct travel to/from any match/practice organised or attended by the club.”[14] It is likely that the underwriters would argue for a strict interpretation of the term “practice matches” such that this should be limited to “practice cricket matches” rather than matches of any other sport. Additionally, the reference to “official” practice suggests a restrictive approach, clearly intended to exclude any idiosyncratic or individual practice regimes that may be followed by individual players or groups of players, but which fall outside of the training regime officially and routinely implemented by the club. The authors consider there to be a strong argument that an ad hoc football match would be excluded from this approach.

Similarly, football is not the only sport that could give rise to injuries that would be excluded from any relevant personal accident insurance policy. Activities such as wrestling, rugby, trampolining or boxing would also be likely to be excluded given the high risk nature of the same. The extent to which such activities provide actual tangible benefits to players that could not be achieved in some other way is likely to be a significant question. It seems likely that underwriters would argue that such high risk sports, when played by individuals not specially trained in them and not properly umpired or refereed, are simply not worth the risk in terms of the ‘benefits’ they provide. Whilst such activities could contribute to general physical fitness or team morale, there are other ways in which these could be achieved. Summary

It can be expected that insurers will increasingly focus on the wording of policy coverage clauses, in particular when it comes to definitions such as that of ‘training’ to limit or exclude cover for these scenarios.

Equally, in the case of existing policies, the authors expect that insurers would be willing to challenge cover by reference to the risks posed by playing football in this context; something which insurers will argue must be outside the scope of insured risk. There is substantial support for this approach in the wording of most insurance policies. As noted above, the ECB insurance scheme is carefully worded to encompass “official practice” and not simply “practice”. As a matter of construction, it would be argued that the word “official” must be intended to limit or prescribe the word that follows. Ordinarily, the Courts will seek to avoid an interpretation that renders wording or parts of a contract otiose: see for example Wood v Capita Insurance Services Limited[15].

Looking beyond the ECB’s wording, most policies will stipulate that cover is provided only where injury is sustained “in the course of” or “in connection with” playing cricket. Even in the absence of specific exclusions, it will be seriously arguable that the playing of a contact sport such as football should objectively have been seen as being outside the scope of insurance at the time the policy was incepted.

Players should be aware of the potential limits of these existing policies. Policies such as those offered by the ECB are intended to cover injuries sustained by players, but if they have the limitations set out above, players may wish to consider obtaining their own bespoke insurance policies, potentially even policies with an income protection element, intended to shield against a loss of earnings regardless of the cause of the same. References Copyright notice

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• Tags: Cricket | England | Insurance | Regulation | United Kingdom (UK)

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Author

Nina Goolamali QC

SILK: 2017 CALL: 1995

Described as “one of the most knowledgeable and personable barristers around”, who is “supremely intelligent” and “just keeps getting better”, Nina has a very well established practice in Sports Law. She took silk in 2017 and is ranked as a Tier 1 Barrister in Sport in the Legal 500 2017.

Nina is highly regarded as a skilled, commercially astute and sensitive advocate and negotiator in complex multi-million pound cases arising in sports disputes.

Nina leads the 2TG Sports Team and has been described in Chambers & Partners as a “sports expert”. She is praised in the Legal 500 for having “unwavering tenacity and determination to get the right result for the client” and “an impressive level of technical knowledge.”

• [email protected] • 2tg.co.uk • Full Profile

Luka Krsljanin

Barrister at 2TG

“A self-confident and bright advocate”, who is “very good technically, very thorough and approachable”, Luka is ranked as a leader in the field for his work in Private International Law (Chambers UK).

• [email protected] • Full Profile