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All Bets Are Off

Leading jockey Kieren Fallon (pictured) added another first to his already colourful career on the day of the Epsom Derby earlier this month. The Irishman found himself in the middle of a court battle which resulted in him not only being turfed out of Britain’s richest horse race, but also setting an interesting new legal precedent.

Ibrahim Araci, the owner of the horse Native Khan, alleged that Fallon acted in breach of a contract he had agreed with the jockey not to ride another horse in the race. The owner sought an injunction preventing Fallon from riding the rival runner Recital.

The High Court decided the day before the Derby that an injunction preventing the jockey from riding in the race would be too severe a sanction and decided that compensation would be an adequate remedy for Fallon’s breach of contract.

In a sensational turn of events, at 9am on the morning of the Derby, the Court of Appeal decided, excuse the pun, to close the stable door before the horse bolted. The court granted an interim injunction to prevent Fallon from riding. The judges decided that damages would not be an adequate remedy for Fallon’s breach of contract. Fallon’s means and the fact that the betting public had already placed wagers was not a sufficient reason to stop an injunction. So Fallon was forced to dismount and take up the unfamiliar position of a spectator.

In view of recent events surrounding the sexual antics of certain footballers, most people will be familiar with “super injunctions”, taken out to protect an alleged breach of privacy. But what is a normal injunction? An injunction is a court order prohibiting a person from taking a particular step, or requiring them to take a particular action. Basically, to stop someone acting unlawfully.

We act for many senior executives in the City of London, in the media and in business, and find that injunctions that require an executive or an employer to observe a contract, are not at all unusual and are widely used. For example they could be used to prevent an individual from joining a competitor for a specified number of months, or from soliciting clients to a new employer. Or they might be used by an executive to stop an employer from placing an executive on garden leave or from breaching a specified dismissal procedure.

Injunctions are becoming more common in the world of sports and at times they can make headlines.

The Jaguar Formula One team were granted an injunction preventing McLaren from entering into or continuing any contract of employment with their chief design engineer Adrian Newey post July 31, 2002, as he had signed a new contract with Jaguar from that date.

Frank Warren sought an injunction in 2005 to stop Ricky Hatton boxing for anyone else.

In October 2010 it was widely publicised that the Royal Bank of Scotland obtained an injunction preventing Liverpool Football Club’s co-owners, Tom Hicks and George Gillett, from sacking independent chairman Martin Broughton.

Toulouse rugby club recently said that they released Gavin Henson partly because he wanted the legal right to play international rugby for Wales. Had the club tried to force him to play a French league game instead he may have been able to get an injunction to release him.

The use of super injunctions by John Terry and other high-profile footballers, to protect their “privacy” is virtually a daily occurrence these days. But stopping a sports star walking onto the field of play is just not cricket is it? Not any more it seems…not after the Fallon case anyway.

In the Fallon case the Court of Appeal judges found that there was a contract which Fallon had breached and that he did not have an arguable defence. Lord Justice Jackson commented: “There is nothing special about the world of [horse] racing which entitles the major players to act in flagrant breach of contract. The defendant has brought this present predicament on himself.” Further, the Court of Appeal ruled that damages would not be an adequate remedy and hence an injunction was granted.

The Fallon case shows that sports stars cannot escape the rules on contract law. They are, in truth, just like any other employee or contractor. This case also illustrates that the courts are increasingly willing to intervene and prevent employees, employers or contractors from breaching contracts via an injunction. It seems to me that the hurdle to jump in order to get an injunction may now be lower.

Despite the injunction against Fallon, the odds are on that he will be back on top form again shortly, after resolving the small matter of the owner’s legal bill.

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