Thursday, 19 March 2009

Ignorance And The Legal Handcart

A few years ago, recalls Lawrence Donegan, an anonymous American prankster with time on his hands and a grudge against the legal profession produced a list of frivolous lawsuits, the purpose of which was to illustrate the cravenness of the general public and the greed of the ambulance-chasing lawyers who persuaded them into court. We now know that the characters pressing their spurious claims before gullible juries were in fact fictional creations, but that does not seem to matter, not when there are very real lawsuits of accordant silliness to be found in equal abundance to support the case we're all going to hell in a legal handcart.

Which point brings us neatly to former Sheffield United manager Neil Warnock, 20 Sheffield United players and the ubiquitous Ken Bates, the chairman of Leeds, all considering legal action based on their belief that the decision to allow Carlos Tevez to play for West Ham during the 2006-07 season cost them money. Squadrons of lawyers will no doubt spend endless, expensive hours arguing the cases. Now, says Donegan, let us dispense with the detail and imagine for a moment that a court finds in favour Warnock and his former players. This is not an outlandish scenario – at least not to anyone with a cursory knowledge of the Griffiths tribunal, which was established by the Football Association to rule on the Tevez affair, and duly concluded the Argentinian's performances had saved West Ham from relegation and, by extension, cost Sheffield United their place in the Premier League.

By any standard other than those applied to fairground fortune tellers, Griffiths' ruling was absurd, although no doubt the good lord and his supporters will view the out-of-court settlement reached by West Ham and Sheffield United – the London club will pay a reported £25million in compensation – as some form of vindication of their verdict. The truth is it merely escalated the problems created by its verdict. If Sheffield United are entitled to compensation, then surely Warnock, who lost his job after the club was relegated, and his players, who lost out when their wage structure was changed to reflect their new Championship status, are also entitled. The same could be said of Bates, whose club would have received £500,000 had Sheffield United remained in the Premier League and been required to honour contingency payments written into the contracts of players transferred between the clubs.

If we accept that Warnock, the players and Bates all have a case, then how can we then condemn their cases as frivolous or silly? Here's how: by asking, where does it all end? The answer, thinks Doengan, logically is nowhere – or at least not until every last person and organisation with at least a tangential relationship with, or the most tendentious gripe about, the Tevez affair has had their day in court. If that isn't silly or a frivolous waste of time, money and public goodwill, then nothing is.

More serious, however, is the question of how to bring an end to the silliness. Here the answer lies with those who believe they have lost out, most immediately Warnock and Bates. For a variety of reasons, both men would feature in any list of "10 least popular people in English football". Whether or not they deserve to be viewed as such is arguable, but what is beyond dispute is if they were to place the interests of the game above their own, if they abandoned all thoughts of legal action and released English football once and for all from the silliness of the Griffiths tribunal, then their reputations would be enhanced immeasurably. As compensation goes, suggests Donegan, this has to be worth something.

Enter stage left the Daily Mail, this morning reporting that Sunderland, West Bromwich Albion and Preston North End are the latest parties understood to have taken legal advice about launching a compensation claim against Sheffield United as the ramifications of the Carlos Tevez affair rumble on. It follows the news yesterday that Leeds United chairman Ken Bates is considering staking a claim for a £500,000 slice of the £25million West Ham have agreed to pay Sheffield United in compensation for their relegation two years ago. Bates believes that he is entitled a windfall because three players he sold to the Sheffield club during the 2006-07 season - midfielder Matthew Kilgallon, striker Rob Hulse and Ian Bennett - had clauses written into their contracts entitling Leeds to bonus payments should their Yorkshire rivals have stayed in the top flight.

Using the same criteria, Sunderland West Bromwich and Preston are now considering following suit as the 'legal anarchy' predicted by West Ham chief executive Scott Duxbury appears to be gathering pace. The Mail reveals Preston sold defenders Chris Lucketti and Claude Davis to the Yorkshire club in the summer of 2006, while West Bromwich transferred Geoff Horsfield and Sunderland striker Jon Stead moved to Bramall Lane in the January transfer window.

Now those that portended all manner of claims arising out of the decision of the Football Association tribunal to award damages to Sheffield United will be feeling rather smug about the news that Warnock, Bates, the 'Sheffield 20' and sundry others are considering taking action against the Hammers for alleged personal losses. Yet, such oracles misunderstood the legal process first time round and will probably do so again, writes Brian Moore in his Telegraph column.

All legal tribunals have to decide matters on the balance of probabilities; they are not required to and could never achieve certainty. Furthermore, whatever claims arise from their decisions are not within their control and should not be a factor in judging the instant case. Any claims as those above will be decided on another simple legal principle - remoteness. Not every consequence of a breach of contract, trust or duty gives a right to damages.

In this way the relatives of Hillsborough victims were deemed insufficiently proximate to recover damages for distress, whereas the police officers at the scene were so deemed. You may not agree with the decisions made by a judicial body, but it is misguided to condemn its function as a result; more so if condemnation comes from ignorance of the principles by which all such bodies operate.

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