Go Hard or Go Home: Amateur footballer receives criminal conviction for dangerous tackle

August 8, 2019

3 min read

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What's going on here?

The Swiss Federal Court has recently upheld the decision that an amateur footballer should serve 40 hours of community service for a reckless slide tackle that broke the ankle of the player on the receiving end.

What does this mean?

Whilst the tackle was only punished with a yellow card during the amateur football game in Switzerland, the defendant has now seen successful action for grievous bodily harm. The defendant suffered a broken ankle, despite the accused not having any malicious intentions when making the tackle. Yet, the accused’s lack of consideration for the consequences of his actions made him liable for the criminal offence according to the Swiss court in Fribourg.

This criminal offence may seem counterintuitive considering that football is a contact sport.

The key considerations when deciding this case were:

1) Was the injury an “on the ball” (when the ball is in play) or “off the ball” scenario?

2)    Is there any “implied consent” by the player (i.e. you risk injury if you play football)?

3) Does the “playing culture” affect this “implied consent”(the general acceptance of the laws of the game and the culture that surrounds it)?

The Swiss Federal Court believes the difference between the “on” or “off” the ball does not change the player’s liability for criminal conviction as demonstrated by their ruling and was not convinced that there was any implied consent nor a “playing culture” that allowed for such injury in this case.

What's the big picture effect?

This case has reaffirmed Swiss case law for “on the ball” principle but may appear contradictory regarding the principles of “implied consent” and “playing culture”.

The Swiss Federal Court has many case precedents by the Swiss Federal Court where “on the ball” offences were upheld. For example, the 2007 Miller and McKim case in an ice hockey match found Miller guilty of assault and negligent bodily injury for injuring Andrew McKim so badly whilst “on the ball” that he could not play professional ice hockey again.

But, the British case of R v Barnes [2005] changed the Swiss Court’s opinion on “implied consent” and “playing culture”. The cases of R v Bradshaw [1878] and R v Barnes [2005] inform UK criminal law in this area. Bradshaw caused a fatal injury to his opponent by barging him off the ball in a football match. The judge ruled that no football match “can make that lawful which is unlawful”, but acknowledged that if the “playing culture” was respected, the injury would not be a matter for the courts. Barnes successfully appealed the initial ruling that he was guilty of grievous bodily harm after a malicious slide tackle that injured his opponent on this very ground of “playing culture”.

As a result, the Swiss Court noted: “the Respondent, by participating in the game, tacitly accepted the risks inherent in the practice of football”. So why did the Swiss Court rule against this recent amateur footballer’s appeal?

The answer is culture difference. On the Barnes ruling, Lord Woolf added that the disciplinary bodies in sports should take responsibility for such matters, except when the case was “sufficiently grave”, but the Swiss do not have the same faith in such bodies.

Whilst there have been cases in the past where players have fallen foul of such laws such as Kerr and Williams did in 2015 and 2016 respectively, rowdy British Sunday League footballers needn’t be as worried as their Swiss counterparts when considering a risky tackle.

Report written by Will Holmes

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