In recent years, many cases of historical sexual abuse have come to light. Where these cases involve the actions of individuals acting in their capacity as employees of large, well-established companies or organisations, victims have often sought to be compensated by the company on the basis of vicarious liability. This article discusses vicarious liability where sporting organisations are involved.
Vicarious liability
Vicarious liability is a common law principle of strict, no-fault liability for the wrongdoings committed by another person. In an employment relationship, it means that where an employee commits wrongdoings, the employer will be liable where there is a sufficiently close connection between those wrongs and the employee's employment.
The courts have provided this rule to encourage employers to have systems in place to ensure good practice by their employees.
To establish vicarious liability two things must be established:
- that the relationship between the employer and the individual carrying out the wrongful acts amounts to a relationship of employment or ‘akin to employment’, i.e. an individual acting on behalf of the employer; and
- that the act(s) of wrongdoing was closely connected to what the wrongdoer was authorised to do in their role, such that it can be fairly regarded that the wrongdoer was acting in the course of their employment or quasi-employment (‘close connection test’).
It is often the case that claims of abuse carried out by sports coaches, scouts, and team personnel come to light years after the abuse has occurred. In order for a club or organisation to be liable for these acts, it must be established that the above two-strand test for vicarious liability has been met.
Mohamed Al Fayed and Fulham Football Club (FC)
In 2024, a BBC investigation reported extensive sexual abuse allegations against Mohamed Al Fayed, the former owner of both department store Harrods and Fulham FC. Allegations stretched as far back as 1995, with claims made by a large array of women, including players from Fulham FC.
Fulham’s former captain, Ronnie Gibbons, alleged that she was sexually abused several times by Mr Al Fayed during her time at the club. Gibbons was driven to Harrods by club staff, where the abuse then took place.
The BBC also reported that Gaute Haugenes, a former manager of the Fulham FC women’s team, stated that extra precautions were put in place to protect female players from Mr Al Fayed. Following reports from staff members, a decision was made not to allow players to be left alone with Mr Al Fayed. The allegation is that Fulham FC, or staff members, were aware of Mr Al Fayed’s alleged conduct and had taken steps to prevent it.
From a liability standpoint, however, the question is not necessarily whether Fulham were aware of the abuse and did, or did not, take sufficient steps to prevent it, but rather whether there was a relationship equivalent to a relationship of employment between Fulham FC and Mr Al Fayed and, if so, whether the actions of Mr Al Fayed were sufficiently close enough to actions within his ‘employment’ remit (despite their unacceptable and criminal nature) to establish vicarious liability.
When determining whether the relationship between Mr Al Fayed and Fulham FC could be considered a relationship of employment, the court will consider a number of factors, one of which is the level of control that Fulham FC had over Mr Al Fayed. In Blackpool Football Club Limited v DSN, it was said that it must be shown that the relationship between the defendant and the wrongdoer is one that involves a degree of control of the wrongdoer by the defendant. Whether it can be said that the Fulham FC ‘controlled’ Mr Al Fayed is arguable. As the owner of Fulham FC, it could in fact be argued that Mr Al Fayed was the one controlling and directing the club.
Whether the actions of Mr Al Fayed are sufficiently connected to the actions permitted in his role as owner is also questionable. In WM Morrison Supermarkets plc v Various Claimants, the court determined that the employer was not liable where the employee was undertaking a ‘frolic of his own’ in pursuing a personal vendetta against the employer, highlighting the distinction to be drawn between cases where an employee is not engaged in furthering the employer’s business, but rather pursuing their own interests. However, determining whether vicarious liability exists is fact specific and this decision will not always prevent vicarious liability arising where an employee is acting maliciously.
It is difficult to put parameters around Mr Al Fayed’s role and duties as owner of Fulham FC, which could mean that all actions carried out by him in relation to the club would be considered permitted as part of his role. Case law has established that even if the conduct of the wrongdoer is criminal, this does not prevent it from being conduct that is connected with acts that are authorised by the defendant. In cases of sexual abuse, courts have highlighted that one factor of particular importance is the conferral of authority from the defendant to the wrongdoer over the victims of the abuse.
Celtic Boys’ Club
Another relevant case in relation to vicarious liability and sport is the Celtic Boys’ Club case. In 2022, a US style ‘class action’ lawsuit was given the go-ahead by a Scottish judge, allowing 22 former Celtic Boys’ Club (CBC) players to bring group proceedings against Celtic FC for alleged sexual assault by several members of CBC staff during their time playing for CBC.
The pursuers argue that Celtic FC are vicariously liable for the actions of CBC due to the close connection between the two clubs. Kit and training gear were provided by Celtic FC and the pursuers believed that they were playing for Celtic FC’s feeder team. Celtic FC claims that the two clubs are completely separate and entirely different organisations.
Whether Celtic FC is vicariously liable for the acts of the various CBC staff members will depend on whether the two-stage test has been sufficiently met.
1. Relationship of employment
In the similar case of TVZ v Manchester City Football Club, eight survivors of child sexual abuse brought a claim against Manchester City Football Club (MCFC) for the actions of Barry Bennell who ran and coached a number of boys’ football teams in Manchester.
Here, Mr Justice Johnson considered a range of factors when determining if a relationship akin to an employment relationship existed. These included whether Mr Bennell owed MCFC a duty of obedience and the nature of control exercised by MCFC over Mr Bennell. In this case, it was determined that the relationship between Mr Bennell and MCGC did not amount to a relationship akin to an employment relationship. Mr Bennell ran the clubs as a volunteer and there was little evidence of MCFC exercising control over his activities.
In the CBC case, Celtic FC did exercise some degree of control over who played for CBC as Celtic FC scouts recruited talented players for Celtic FC. However, control and direction go further than this and the court will also take into consideration other factors, such as whether the employer has a right to control not just what a defendant does, but how he does it and what he does not do.
2. Close connection test
In TVZ v Manchester City Football Club, the court found that the claimants also failed the second stage of the test. Although case law has established that criminal conduct can be connected with acts that are authorised by the defendant, there must be some conferral of authority from the defendant to the wrongdoer over the victims of the abuse. There was no evidence that showed that MCFC had responsibility for the boys whilst they were under the care of Mr Bennell.
In the CBC case, it will have to be shown that Celtic FC entrusted the care of the victims to the alleged abusers at CBC and that therefore the abuse was inextricably interlinked with the alleged abusers carrying out their duties.
These two cases show us that if liability is to be established then the claimant will need to show, at a minimum:
- the wrongdoer owes the defendant a duty of obedience, as an implied term in an employment contract;
- the defendant has a right to control what the wrongdoer does; and
- there is a conferral of authority from the defendant to the wrongdoer over the victims.
Comment
Assessing whether vicarious liability applies is a fact-specific exercise and the outcome of the cases involving Fulham FC and Celtic Boys’ Club will depend on the facts of each case.
These cases understandably tend to attract wide-spread media coverage and public outrage, however, despite this, it is important to remember, as the judge noted in TVZ v Manchester City Football Club, vicarious liability must not be imposed on an organisation: “… on the basis of an intuitive feeling for where the justice of a case lies. Rather, it [is] necessary to apply the tightly controlled legal tests as set down in the authorities.”
For further information please contact Aine Coll or your usual Shepherd and Wedderburn contact.