- The number of cases of sexual abuse in English football looks set to increase dramatically
- Clubs which turned a blind eye to abuse will be punished by the Football Association “regardless of size”
- Clubs, rather than leagues and federations, are likely to be the targets of compensation claims
The cost to English football of having failed to protect some of its most vulnerable participants – the young people who suffered sexual abuse at the hands of their coaches – could run into the tens of millions of pounds in settlements and damages.
In practice, the insurance industry will foot the bill. But the long-term reputational damage to clubs that are found to have been liable for the behaviour of abusive coaches – or worse, to have covered it up – could also be considerable.
At the time of writing, the number of incidents of alleged sexual abuse in sport referred to Operation Hydrant, the police investigation set up in June 2014 into ‘non-recent’ cases of child sexual abuse in the UK, stands at 1,016. They relate to 526 alleged victims, 184 potential suspects and 248 clubs ‘referenced’, though not necessarily under investigation. Referrals cover multiple sports, including athletics, cricket, golf, gymnastics, martial arts, rugby, sailing, tennis and wrestling. But the majority of the cases involve football.
The number of cases is almost certain to rise substantially. Many of the alleged victims only came forward in a two-month period after several former professional footballers waived their anonymity and began talking about their experiences to the UK media in November. The former players – including Andy Woodward, Steve Walters, Paul Stewart, David White (pictured, playing for England), Ian Ackley and Anthony Hughes – want to raise awareness of the problem to protect youngsters currently involved in football.
Alison Millar, a solicitor at UK law firm Leigh Day, which represents abuse victims, said: “The allegations by former pros involving professional clubs are only the tip of the iceberg. This is also happening in amateur sport. The footballers who have spoken out have been incredibly courageous in doing so. But this is not new. We have been handling claims for abuse arising out of sport for quite some time. The majority of claimants don’t go public. It’s very brave to go public.”
Criminal and civil actions
Where the police consider there is sufficient evidence, criminal proceedings will be launched against the abuser, potentially leading to a trial. The most high-profile case of criminal prosecution was that of Barry Bennell, who had coached in the professional game at Crewe Alexandra, Manchester City and Stoke City, as well as at several amateur clubs and organisations. In 1998, Bennell was sentenced to nine years in prison for offences, including buggery, against boys aged between nine and 14.
The victims in abuse cases face a choice about whether to proceed also with a civil case against the club involved for either ‘vicarious liability’ or ‘direct negligence’. Here burden of proof lies with the claimant.
Going down this route is not an easy choice. There are many obstacles, both psychological and legal, to doing so. A case last year involving Stoke City is likely to be studied closely by lawyers when advising victims whether to pursue such claims through the courts.
Truth ‘obscured’ by passage of time
In 2015, former Stoke youth trainee George Blackstock sued the club and its former goalkeeper, Peter Fox, for alleged “intimate” (but not sexual) physical assaults in 1986 and 1987, when he was 16 and 17. The club was in the second division of the Football League at the time.
Blackstock claimed he had been the victim of a ritual known as “gloving.” This, he alleged, involved Fox smearing a goalkeeper’s glove with a pain relief ointment and inserting a finger into his anus. He told the court that it had been his dream to become a professional footballer but that the alleged events had left him feeling “destroyed as a person” and led to him taking antidepressants, descending into alcohol abuse, struggling in personal relationships and requiring therapy. He called seven witnesses to support his case.
Blackstock sued for £170,000 (€200,000/$209,000) for loss of earnings and post-traumatic stress.
His case against the club was for “vicarious liability for the tortious acts of the second defendant [Fox] as its employee.”
Fox and the club strenuously denied the allegations and that such a ritual existed. Fox called five witnesses in his defence. During evidence, Fox’s legal representatives said that Blackstock was “willing to lie for financial gain.”
In his ruling, Judge Phillip Butler said: “I find that the substantive trial, although fair, has demonstrated that such a long passage of time has so affected the reliability of the memories of some of those giving evidence and the credibility of that evidence that the picture has become so confused and the truth, whatever it may be, so obscured that I am unable to make the positive findings of fact necessary in order for the claimant to succeed.
“I do not find the claimant’s allegations are consciously dishonest or that nothing untoward ever occurred between players and apprentices at the club all those years ago, but I am unable to find as a fact that the specific events alleged by and allegedly involving the claimant did occur. This decision is not the equivalent of a positive finding that no such assaults took place.”
Blackstock lost the case, which left him facing legal costs of £200,000.
Although not a sexual abuse allegation, the Blackstock case highlighted a number of the difficulties which exist where the alleged abuse took place many years ago. Such claims are likely to account for the bulk of the football referrals to Operation Hydrant for two reasons. First, until the silence was broken in November, many victims had felt unable to come forward. Second, the child protection policies in place in English football in the last decade or so are far more robust than they were in the 1970s, ‘80s and ‘90s.
The Football Association’s current child protection procedures are generally regarded as best in class, and are copied by many other federations and sports bodies around the world. The Premier League has a dedicated welfare officer, as does each of its 20 clubs.
Where does liability begin and end?
The recent wave of allegations has raised questions about where liability ends in a hierarchical structure such as that of sport. Clearly, liability begins with the abuser. Beyond that, where does it stop? At the club where the abuser worked? The league the club plays in? The federation it is affiliated to? The regional confederation? The global governing body?
One lawyer working at the top level of English football said: “A professional league would consider itself in every sense to have a duty of care. The league is a collective of the clubs, even if a separate limited company. It’s a collective in which the clubs come together to agree the system by which things operate. The club’s operations would be agreed with the others through the league and how it manifests itself in centralised procedures and practice, operated by the league and/or the FA. All of these bodies would consider, both in a narrow legal sense and in a more general sense, to have a duty of care for the boys and girls playing football. Federations, through their own staff coaching national youth teams, are more analogous to a club than to a league.”
In practice, most vicarious liability or negligence claims are likely to be against clubs. As Millar puts it: “You are looking at suing the employer. Generally, you don’t go all the way up the chain, to the FA or whoever. With the modern doctrine of vicarious liability, you are not looking for proof of fault on the employer’s part. The starting point is the club and whether they are responsible for the actions of the coach whom they placed in a position of trust and responsibility.”
Richard Bush, an associate in the sports group at law firm Bird & Bird, concurred. “All cases are highly fact-specific, but clubs would I think typically be the most obvious target for claims, particularly if you assume that the abuser doesn’t have significant means,” he said. “There is a closer relationship between club and coach than say between the FA and coach. It would, in my view, generally be far more challenging to take it up the chain.”
Bush said that once it has been established that abuse took place, the questions a lawyer would ask before deciding whether to advise bringing a legal case against a sports club or organisation are:
Was there foreseeable harm to the claimant?
How close was the relationship between the organisation and the claimant?
Is it likely to be fair, just and reasonable in all the circumstances to impose a duty of care on the organisation?
Has that duty of care been breached?
What loss has the claimant suffered?
He said that all sports organisations should make sure they currently have robust procedures in place in relation to child abuse prevention, including policies, reporting mechanisms, training and education. They should also make sure that they are “aware of their insurance position, both historically and going forward.” There is no guarantee that the policies they had in place at the time of the offences covered them for sexual abuse.
Compensation and reputation
The level of damages payments, and consequently of out-of-court settlements, awarded in sexual abuse cases in England are far lower than in similar cases in the US. The award system in England is ‘compensatory’; the one in the US is ‘punitive’.
Compensatory means based on what the victim may have lost as a result of the incident. If there is evidence that the player might have had a career at the highest level that was cut short, compensation could be high; if the loss involved wasn’t great, the figure would be lower.
Millar said that the amounts of compensation were now “relatively settled” in the UK and that most claims were resolved relatively quickly once it was accepted that abuse had taken place or may have taken place. “Insurers tend to be pragmatic: they expect these claims,” she said. “They are not novel.” Given the number of cases, the total settlement figure was likely to be “pretty significant.”
In England, the current range for the assaults themselves and trauma at the time and consequential physical and mental injury is between £5,000 and £80,000. Compensation may be claimed over and above this for ‘aggravated damages,’ which means damages for the mental distress caused by the manner with which a wrong was committed or by the defendant’s conduct subsequent to the wrong. The consequential losses – particularly loss of earnings or the costs of care and therapy – can take the total claim well above £100,000.
A system with punitive damages, like that in the US, can take the level far higher, with the intention of acting as a deterrent to similar future crimes.
The most high-profile cases in the US are those that have involved the Catholic Church. According to the National Catholic Reporter, which describes itself as “an independent voice for Catholics and people of faith,” the Church has incurred costs of nearly $4bn linked to sexual abuse by priests since cases started to be reported in the 1950s. Other research organisations put the figure closer to $3bn.
Because the sexual abuse cases in British football have only recently started to gain widespread media coverage, which could encourage many more victims to bring claims or go public with their experiences, it is far too early to evaluate the impact of the crisis on individual clubs or for football in general. A support hotline set up by UK children’s charity, the NSPCC, for abuse victims in football received 860 calls in the first week after it was set up on November 23.
Some risk assessment experts say that for any club found to have turned a blind eye to abusive coaches, either because they valued the coach and didn’t want to lose him, or feared public opprobrium or criminal proceedings, the impact on its reputation could be devastating. This could lead to the kind of flight of sponsors and commercial partners that has followed doping and corruption scandals in sport. Such clubs could also find it virtually impossible to recruit young players in the future.
FA chairman Greg Clarke (pictured below) has promised to punish any club, “regardless of size,” that is found to have covered up cases of historic sexual abuse.
One senior official in English football, with years of governance experience, said that if cases were found to be more recent, the impact could be worse. “The consequences of a breach of duty taking place now for a football club would be severe,” the official said. “This could lead to the closing down of an entire Academy and youth operation. If you are not capable of discharging your duty of care, that is a very serious issue for your business.”
EXTRA: FA sets up independent inquiry
In November, the Football Association set up an independent internal inquiry into the recently reported cases of sexual abuse by former coaches. It is chaired by senior barrister Clive Sheldon QC. It will consider the extent to which the FA was aware of any of the issues relating to non-recent child sexual abuse from the 1970s to 2005.
The inquiry will assess what steps the FA took to address safeguarding/child protection issues in the sport and to consider any failings by the association, in particular, “whether it failed to act appropriately to anything raised with it relating to child sexual abuse, in relation to any football club (at any level of the game including grassroots clubs) or alleged abuser that may come to light.”
It will also examine the steps taken by clubs at any level of the game which are “identified as linked to alleged sexual abusers” and at what steps the clubs are now taking to investigate what they knew at the time.
FA chairman Greg Clarke (pictured) has described the sexual abuse cases as one of the biggest crises the association has ever faced. He said the FA had to get to the bottom of “the moral consequences of having failed to deal with some of these issues in the past.”
The FA has commissioned a dedicated, 24-hour NSPCC helpline to support victims of sexual abuse in football: 0800 023 2642
EXTRA: The legal loophole leaving youngsters at risk
The recent sexual abuse cases in English football have highlighted an anomaly in the way English law treats coaches who engage in sexual activity with 16- or 17-year olds which campaigners believe must be addressed.
Under English law, any kind of sexual activity by an adult with a child under 16 is a crime. For adults in a position of trust or responsibility, this extends to sexual activity with 16- and 17-year-olds. The law defines specific roles and settings where sexual activity between 16- and 17-year-olds and those in positions of trust, responsibility or authority constitutes a criminal offence.
These include roles like teachers and foster carers and settings like educational institutions, residential care homes, hospitals, and youth offender institutions. Being a coach, instructor, helper or official in a sports club, at a sports facility or at a sports event is not caught by the law.
Alison Millar of Leigh Day says: “It is very unhelpful that this is not a criminal offence under the Sexual Offences Act 2003, which protects 16- and 17-year-olds. Most child protection policies in sport would say that sexual activity between a coach and someone under 18 is wrong and shouldn’t happen. The fact that it is not a criminal offence can affect the quality of the investigation carried out into what has happened. Police cannot investigate because it is not a criminal offence. A governing body may not investigate very well.”
The NSPCC, the UK children’s charity, has called for the legislation to be extended to “roles and settings within sports,” because of the “vulnerability of young people and the particular circumstances of sport.” However, it argues that in lieu of any new legislation, all “governing bodies and other sports organisations should take disciplinary action in situations where an adult in a position of authority has abused their position of trust by having sexual contact with a 16- or 17-year-old.”