By Jon Heshka, of Thompson Rivers University
A player is suing an opponent and two soccer associations for $1.2 million alleging that injuries sustained in a 2018 match left her with injuries including a concussion, depression, anxiety, and pain and suffering.
Marilyn Ludwig was playing goalie and claims that Crystal Norum charged at her from ten feet away after she had kicked the ball toward the far side of the field.
She claims that Norum purposefully and maliciously assaulted her with an intent to injure. Ludwig further claims that Norum’s conduct was in violation of the rules and regulations of the Alberta Soccer Association (ASA) and the Sherwood Park District Soccer Association (SPDSA) and in breach of their player code of conduct.
Ludwig claims that the referee had lost control of the match. Complaints were allegedly lodged against both the referee and Norum throughout the match. Lastly, Ludwig claims that the associations failed to provide a properly trained referee and failed to officiate the match.
None of the defendants have yet to file a defense.
Ludwig’s case will centre on the extent to which the misconduct breached not only the rules of the game but its playing culture.
The rules contemplate physical contact. Soccer’s International Federation is the Fédération Internationale de Football Association (FIFA). FIFA’s Laws of the Game state that “physical contact between the players is normal and [is] an acceptable part of the game” (p. 93). Egregiously violent contact on the pitch is not part of the game.
In the opening line of a case involving a soccer player repeatedly kicking the opposing team’s goalie while going after a loose ball in the penalty area, Justice Mainella of the Court of Queen’s Bench of Manitoba in R. v Adamiec (2013 MBQB 246) wrote that George Orwell warned that lurking behind the fun offered by competitive sports is the threat of the arousal of “the most savage combative instincts.” The appellate court noted that the “law tolerates a certain degree of physical contact on the playing field, which may be contrary to the formal rules of the particular sport, but it is acknowledged by tradition to be part of the playing culture of that sport” (para. 32). It also said that players consent to certain use of force beyond the rules of a contact sport such as soccer but do not consent to force applied in excess of the game’s norms, customs and traditions.
Application of force in very close proximity of play (i.e. “on the ball”) that is contrary to the rules of the sport is the most troublesome scenario for the courts to tackle. In the leading Canadian case of R. v. Cey 1989 CanLII 283 (SK CA), the Court of Appeal for Saskatchewan was mindful of gray zone that separates intentional bodily contact sanctioned by the rules and thus ordinarily included within the scope of the implied consent and other bodily contact which is so far beyond the rules and so violent as to be obviously excluded from consent. It therefore becomes a matter of degree how far “off the ball” must conduct be in order for it to be negligent. Adamiec was acquitted as the court found there was no intent to injure the complainant or to use force for anything but a legitimate sporting purpose, albeit done in a manner contrary to the rules of soccer.
What happened to Ludwig on the pitch involves questions of fact that the court will determine if the case goes to trail. In determining the bounds of reasonableness, the court will take into account the circumstances which in this instance includes vigorous participation in a contact sport which is fast, requires very quick decisions and which contemplates inadvertent contact.
In order for the Alberta Soccer Association and the Sherwood Park District Soccer Association were negligent due to the officiating, Ludwig will have to show that the associations either negligently hired an unqualified referee or are somehow responsible for the referee allowing, as has been alleged, the match to go out of control. It is unknown at this time which association was responsible for the hiring of the referee.
The referee is not a defendant in the lawsuit. There is English case law that has established the existence of a duty of care owed by a referee to ensure the safety of participants in rugby matches (Smoldon v. Whitworth [1996] EWCA Civ 1225 and Vowles v. Evans [2003] EWCA Civ 318). There is no Canadian case law concerning the duty owed by a soccer referee to his/her players.
Ludwig claims that the associations failed to supervise players to play within a code of conduct. The SPDSA Code of Conduct contains a players’ pledge whereby each player agrees to “follow and play by the rules of the game.” The SPDSA follows the rules of soccer set out by FIFA and the ASA. It has already been noted that the rules of the game consider physical contact between the players as normal and an acceptable part of the game but that excessive violence is not part of the game.
It is doubtful that Ludwig will succeed on this part of her claim. A case last year in eastern Canada which involved one player punching another in the face in the course of a soccer game — and the player being criminally convicted of assault — did not find the Ontario Soccer Association negligent due to a want of causation. Unless the violent act was premediated, the Court of Appeal for Ontario in Da Silva v. Gomes [2018] ONCA 610 said that it “is clear that supervising authorities are not legally responsible for a ‘sudden unexpected event in the midst of an acceptable, safe activity’ (Patrick v. St. Clair Catholic District School Board [2013] O.J. No. 6216, at para. 266).
No statements of defence have yet to be filed.
