S0261387522000344jra 221..239

RESEARCH ARTICLE

The vicarious liability of sports governing bodies and

competition organisers

James Brown*

†

Manchester Metropolitan University, Manchester, UK

*Author email: [email protected]c.uk

(Accepted 31 August 2022)

Abstract

This is the first work to explore the possibility of holding sports governing bodies and competition

organisers vicariously liable for the tortious behaviour of athletes that compete under their auspices. In

contrast to other scholarly contributions on vicarious liability in sport, this paper examines the scope

of responsibility for athletes in individual sports (as opposed to team sports). It begins by drawing

upon the recent tribunal proceedings between professional cyclist Jess Varnish and British Cycling to

analyse the employment status of government-funded individual athletes. In calling for a contextual

and policy-sensitive approach to the definition of an ‘employee’, this paper argues that certain normative

and theoretical considerations ought to be granted more or less weight depending on the particular legal

issue animating the dispute. Thereafter, and with one eye on the overly intrusive regulatory provisions

found in sports such as tennis and golf, this paper also demonstrates that the vicarious liability of

governing bodies and competition organisers could equally be extended to cover the tortious conduct

of non-funded individual athletes. In making these claims, it is demonstrated how a sport-specific appli-

cation of the doctrine may help to teach us a few broader lessons about vicarious liability more generally.

Keywords: tort law; vicarious liability; sports law; employment law; sporting regulation

Introduction

The doctrine of vicarious liability has long been recognised as a fundamental aspect of tort law. It

stands for the proposition that one party will be strictly liable for the harmful conduct of another,

so long as there is a close connection between the injury and the wrongdoer’s relationship with the

defendant. It is most commonly used to hold employers responsible for the actions of their employees,

although recent case law has established that vicarious liability may also be imposed for relationships

that are merely ‘akin to employment’.

This development was seemingly intertwined with a judicial appreciation of the various theoretical

rationales for vicarious liability. As evidenced by Lord Phillips’ five-factor test in Various Claimants v

Catholic Child Welfare Society,

several justifications for the doctrine can be identified. These include,

for instance: loss spreading and deep pockets (which suggest that liability ought to be imposed on the

party who is best able to financially bear the loss); control (which maintains that employers are usually

†

I would like to thank Professor Tsachi Keren-Paz, Dr Andreas Rühmkorf and the two anonymous reviewers for their

insightful comments on previous iterations of this paper. A version of this paper was also presented at the Sport and

Recreation Law Association Conference on 23 February 2021. As such, I would also like to thank the organisers and parti-

cipants of this conference for their helpful feedback.

JGE v English Province of Our Lady of Charity [2013] QB 722.

[2012] UKSC 56 at [35].

distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unre-

stricted re-use, distribution and reproduction, provided the original article is properly cited.

Legal Studies (2023), 43, 221–239

doi:10.1017/lst.2022.34

https://doi.org/10.1017/lst.2022.34 Published online by Cambridge University Press

in the best position to prevent the harm); risk (which highlights that employers ought to be held

responsible for any inherent or foreseeable harm that flows from their enterprise); and fairness

(which indicates that those who seek to benefit from a particular activity should also be held account-

able for any losses that such activity causes). The final two justifications might be said to be two over-

lapping formulations of the wider concept of enterprise liability.

The argument propounded in this paper is that an application of these theories justifies the imposition of

vicarious liability on national governing bodies (NGBs) and competition organisers for the tortious behav-

iour of athletes in so-called individual sports (such as tennis, boxing and golf). Of course, one might suggest

that such an e xamination of theory is erroneous follo wing the recent case of Barclay s Bank v Various

Claimants. There, Lady Hale relega ted the use of theory to all but the most ‘doubtful’ of cases, and she sug-

gested – in line with the judgment in WM Morrison Supermarkets plc v Various Claimants

– that we ought

to adopt a more principled, incremental approach tha t derives assis tance from previously decided cases in

this ar ea of law .

However, in contrast to some scholars who have suggested that Barclays may finally

have halted the ever-growing expansion of vicarious liability,

I am somewha t sceptical as to whether the

Supreme Court’s judgment in Barcla ys has had the desired effect. After all, the various possible interpr eta-

tions of the term ‘doubtful’ indicate that theory could, in fa ct, continue to play a significant r ole in future

vicarious liability cases. In this r egard, it is notable that, following Barclay s, we see barristers regularly sub-

mitting (and judges subsequently accepting) tha t a particular case is ‘doubtful’,

and many judges also still

seem keen to continue referring to Lord Phillips’ five-factor test when jus tifying their conclusions.

Moreover,oneperhapsonlyneedstobrieflyperusetheexistingworkonsportingvicariousliabilityin

order to expre ss some doubt as to whether vicarious liability is applicable to the individual sporting con-

text. Indeed, the exis ting scholarly analysis on sporting vicarious liability has been predominantly , if not

exclusiv ely , directed towards the responsibility of employers in team sports.

Whilst Anderson obser v es

that vicarious liability for negligent on-field acts in this context has rea ched an almost ‘presumptive,

uncontested sta tus’,

there has been an alarming lack of discussion in relation to the appropriate scope

of responsibility for individual athletes. This is also reflected by the fact tha t case law on sporting vicarious

liability – in both the UK and overseas – has been centr ed entir ely around team sports such as football,

rugby union

and basketball.

J Neyers ‘A theory of vicarious liability’ (2005) 43 Alberta Law Review 287 at 297–298.

[2020] UKSC 12 at [24] per Lord Reed.

[2020] UKSC 13 at [27]. See also P Giliker ‘Can the Supreme Court halt the ongoing expansion of vicarious liability?

Barclays and Morrison in the UK Supreme Court’ (2021) 37 PN 55 at 66.

C Purshouse ‘Halting the vicarious liability juggernaut: Barclays Bank PLC v Various Claimants’ (2020) 28 Medical Law

Review 794.

Hughes v Rattan [2021] EWHC 2032 (QB) at [100] per Collins QC; DJ v Barnsley MBC [2021] 1 WLUK 632 at [23] per

Myerson QC.

MXX v A Secondary School [2022] EWHC 2207 (QB) at [200] per HHJ Carmel Wall; TVZ & others v Manchester City

Football Club Ltd [2022] EWHC 7 (QB) at [321] per Johnson J; Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 at

[100]–[104] per Stuart-Smith LJ; JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools [2020]

EWHC 1914 (QB) at [144] per Chamberlain J.

See eg S Rubin ‘The vicarious liability of professional sports teams for on-the-field assaults committed by their players’

(1999) 1 Virginia Journal of Sports & the Law 266; M James and D McArdle ‘Player violence, or violent players? Vicarious

liability for sports participants’ (2004) 12 Tort Law Review 131; N Parpworth ‘Vicarious liability on the rugby union field’

(2008) 172 JP 572; J Harris ‘A sporting chance’ (2012) 162 New Law Journal 1248; M Beloff et al Sports Law (Oxford: Hart

Publishing, 2nd edn, 2012) pp 157–158; P Morgan ‘Vicarious liability and the beautiful game – liability for professional and

amateur footballers?’ (2018) 38 LS 242.

J Anderson Modern Sports Law (Oxford: Hart Publishing, 2010) p 243.

Elliott v Saunders and Liverpool FC (unreported, 10 June 1994) QBD; McCord v Cornforth and Swansea City AFC (1997)

The Times, 11 February; Gaynor v Blackpool Football Club [2002] CLY 3280.

Gravil v Carroll and Redruth Rugby Football Club [2008] EWCA Civ 689. In the context of rugby league, see Canterbury

Bankstown Rugby League Football Club v Rogers [1993] Aust Tort Reports 81-246; McCracken v Melbourne Storm Rugby

League Football Club [2005] NSWSC 107.

Tomjanovich v California Sports Inc No H-78-243 (SD Tex Aug 17, 1979).

222 James Brown

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Now, it must be appreciated that there is perhaps good reason for this: English law has long recognised

that professional athletes are employees of the clubs they represent.

In contrast, the classic position (at

least for the purposes of employment law) has generally remained that athletes in so-called individual

sports are independent contractors working on their own account.

The purpose of this paper is to chal-

lenge that assumption by examining, from a theoretical standpoint, how the overly intrusive regulatory pro-

visions of many NGBs and competition organisers could lead to them being held vicariously liable for the

athletes that compete under their auspices. This is both a descriptive and normative argument based on the

first necessary element of any vicarious liability claim: the establishment of a sufficient relationship.

To be clear, ther e is nothing particularly nov e l in claiming that NGBs ought to be held r esponsible for

on-field injury. This is illus tr a t ed by Vowles v Evans and Welsh Rugby Union, a case in which the Welsh

Rugby Union was held vicariously liable for the negligence of one of its appointed refer ees.

The point

raised in this paper, ho w ever, is tha t this liability has yet to be extended to cover r esponsibility for the tor-

tious beha viour of athletes. Whilst James notes that the liability of NGBs is the ‘leas t explor ed area’ of

sports-rela ted personal injury claims,

he does highlight that the law on sports torts ‘continues to extend

legal liability to new contexts and ne w defendants who had not previously considered themselv es to be at

risk from litigation’.

As such, it may only be a matter of time before an inno va tiv e claimant looks to take

advantage of the solvency of a governing body or competition organiser in their pursuit of compensat ion.

With this in mind, it is worth noting that this paper is separated into two (largely overlapping)

parts. The first relates to vicarious liability for government-funded individual athletes. In con tributing

to the growing debate on the relevance of other areas of law to the determination of employment status

for vicarious liability, I draw upon insights from the recent tribunal proceedings between professional

cyclist Jess Varnish and British Cycling to argue for a contextual and policy-sensitive approach to

employer liability. Thereafter, and in the second part of the paper, I examine how the theoretical

and normative rationales for liability in the funded context can equally be transposed to justify vicari-

ous liability for non-funded individual athletes. In this regard, I utilise professional tennis and profes-

sional golf as two instructive examples. In making this argument, I also endeavour to demonstrate how

an application of the doctrine to the individual sporting context may help to teach us some broader

lessons about vicarious liability more generally.

1. Vicarious liability for funded individual athletes

The reference to the ‘funded’ athlete here refers to those professional sports participants who are

funded by an NGB in order to help them fulfil their athletic and medal-winning potential. With

the assistance of funding from UK Sport, NGBs are able to operate a World Class Performance

Programme (WCPP) in their respective sports.

Those athletes selected for a WCPP will enter into

a Performance Athlete Agreement (PAA) which imposes certain obligations on the individual partici-

pant (such as, for example, behavioural standards or restrictions relating to their image rights).

return, NGBs provide a wide range of benefits – including the provision of world-class coaching,

sports science advice and access to high-tech equipment and facilities

– which are estimated to be

Walker v Crystal Palace FC [1910] 1 KB 87 at 93 per Farwell LJ.

S Gardiner et al Sports Law (Abingdon: Routledge, 4th edn, 2012) p 396; M Minkowitz ‘Jockeying for benefits – pro-

fessional athletes and workers’ compensation’ (1991) 21 Brief 24 at 24.

[2003] EWCA Civ 318.

M James Sports Law (London: Palgrave, 3rd edn, 2017) p 111.

Ibid, p 99. See also H Opie ‘Survey: a global perspective on the most important cases affecting the sports industry’ (2009)

16 Villanova Sports & Entertainment Law Journal 99 at 109 (arguing that civil courts have ‘allowed increasingly exotic claims’

in the sports context).

See eg, https://www.britishat hletics.org.uk/uk-sport/. This and all other weblinks were last accessed on 8 September 2022.

A Smith et al ‘The funding and employment status of elite athletes – a comparison of the UK, USA and Germany’

LawInSport 6 May 2016, available at https://www.lawinsport.com/topics/item/the-funding-and-employment-status-of-elite-

athletes-a-comparison-of-the-uk-usa-and-germany.

See https://www.uksport.gov.uk/our-work/investing-in-sport/how-uk-sport-funding-works.

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worth up to £60,000 per athlete per annum.

Alongside this, UK Sport also directly funds (primarily

through National Lottery income) the living and personal sporting costs of WCPP-initiated athletes

through the guise of an Athlete Performance Award (APA).

This is awarded on the basis of both

means-testing and athletic potential, with athletes at the so-called ‘Podium level’ usually receiving

an annual £28,000 tax-free grant.

Around 1,100 of the UK’s leading athletes in a variety of individual

sports benefit from such investment,

with many participants (such as those in athletics or cycling)

reliant on the funding for much of their professional careers.

Unfortunately, and perhaps due to the desire for medals and national success, many NGBs have

adopted a domineering approach over their athletes that might be said to imitate the role of an

employer instructing an employee. Despite protestations – in both the UK

and USA

– that the

agreement between an athlete and their respective sporting body only gives rise to independent con-

tractor status, the courts have frequently stressed that they will look to the ‘reality of the situation’

rather than simply defer to the label used by the parties themselves.

This is a particularly important

exercise for many sports-related employment disputes because, as Schwab highlights,

most NGBs

can exert monopolistic power over athletes on a ‘take it or leave it’ basis,

and it is unlikely that

an athlete would be able to compete under the auspices of an NGB without adhering to their ‘ legally

controversial’ contractual demands.

Consequently, it is little surprise that some funded athletes have

sought to challenge their legal status as independent contractors. The most relevant case in point here

involves the recent legal proceedings between professional cyclist Jess Varnish and British Cycling/UK

Sport.

(a) Varnish v British Cycling Federation

The crux of this case rested on the true reason for Varnish being dropped from British Cycling ’s

WCPP in 2016. Whilst the governing body maintained that the decision was performance-related,

Varnish contended that the underlying reason related to both her criticism of certain coaches at

British Cycling, and the misogynistic comme nts of its former technical director, Shane Sutton (who

allegedly told Varnish to ‘go and have a baby’).

However, before she could pursue a claim for unfair

dismissal or sex discrimination, she first had to prove that she was eith er an employee or worker of

British Cycling or UK Sport under section 230 of the Employment Rights Act 1996. The

Smith et al, above n 20.

J Taylor and J Herbert ‘Government intervention in the sports sector’ in A Lewis and J Taylor (eds) Sport: Law and

Practice (Haywards Heath: Bloomsbury, 3rd edn, 2014) p 32.

S Ingle ‘Jess Varnish loses employment tribunal against British Cycling and UK Sport’ The Guardian 16 January 2019,

available at https://www.theguardian.com/sport/2019/jan/16/jess-varnish-employment-tribunal-british-cycling-uk-sport.

Ibid. According to https://www.uksport.gov.uk/our-work/investing-in-sport/current-funding-figures, UK Sport funds,

through contributions to the respective NGBs, the following individual sports: archery, athletics, badminton, boxing, canoe-

ing, cycling, diving, equestrian, gymnastics, judo, karate, rowing, sailing, shooting, swimming, taekwondo and triathlon.

L Payne and C Mathews ‘The employment status and rights of funded athletes in the UK’ LawInSport 13 November

2018, available at https://www.lawinsport.com/topics/item/the-employment-status-and-rights-of-funded-athletes-in-the-uk.

K Russell and R Nicholson ‘Are professional athletes employees?’ (2019) 10 GSLTR 36 at 38–39 (referring to British

Cycling’s statement which suggests that its ‘relationship with [athletes] is not one of employer-employee but that of a service

provider supporting talented and dedicated athletes to achieve their best’).

Smith et al, above n 20 (highlighting the US Rowing APA which maintains that athletes are ‘independent contractors

providing services to US Rowing on a contract basis’).

Autoclenz Ltd v Belcher [2011] UKSC 41 at [22].

B Schwab ‘Embedding the human rights of players in world sport’ (2018) 17 International Sports Law Journal 214 at

217–218.

R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909 at 929–930 per Farquarhson LJ.

Schwab, above n 30, at 217–218.

PA Media ‘Jess Varnish wins right to appeal against verdict in British Cycling case’ The Guardian 17 December 2019,

available at https://www.theguardian.com/sport/2019/dec/17/jess-varnish-wins-right-to-appeal-verdict-in-case-against-brit-

ish-cycling.

224 James Brown

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Employment Tribunal (ET) at first instance concluded – much like it had done almost 20 years earlier

in relation to a similar claim by former track cyclist Wendy Everson

– that Varnish was neither an

employee of, nor a worker for, the governing body.

Likewise, the absence of any ‘day-to-day relation-

ship’ between the claimant and UK Sport similarly precluded employee and worker status here.

her appeal case that dropped the (presumably weaker) claim against UK Sport, the Employment

Appeal Tribunal (EAT) reaffirmed the ET ’s decision on the basis that the first instance tribunal

had properly and reasonably directed itself as to the relevant legal and factual principles.

The key

features of this litigation were the so-called three ‘irreducible minimum’ requirements needed to

establish an employment relationship: mutuality of obligation; personal performance; and control.

Given that Varnish did not challenge the initial judgment on the two latter requirements, it may

reasonably be concluded that Judge Ross’ sentiments on these two factors in the ET continue to

constitute good law.

On the issue of control, the ET considered this to be a ‘significant feature’, in that ‘many aspects of

[Varnish’s] life including what she ate how, when and where she trained were closely controlled by

British Cycling’.

With reference to the PAA, Judge Ross also found that the NGB exercised control

over the claimant’s media image and appearances, her personal commercial work and use of social

media, and when she could take time off.

Interestingly, the ET also found that Varnish was ‘inte-

grated into [British Cycling’s] organisation, working closely with her coach and wearing the team

clothing’ at all events and training sessions.

Although not every aspect of the purported employment

relationship between the two parties was supported by the notion of control (such as the fact that

Varnish could choose both her own coach and equipment if she so wished),

it was clear that

Judge Ross considered British Cycling’s degree of control in this scenario as taking them beyond a

mere regulator of the sport. Unfortunately for Varnish, however, this fact was outweighed by the

absence of mutual obligations and personal service in her relationship with British Cycling.

In relation to mutual obligations, Mr Justice Choudhury in the EAT rejected the claimant’s plea

that the obligations under the PAA constituted work (and that the services simultaneously provided

to her constituted remuneration),

and he reiterated the ET’s findings that she was simply privy to a

‘contract where services are provided to [her], not the other way around’.

In other words, there was

no obligation on British Cycling to provide work, nor was there a corresponding obligation on

Varnish’s part to ‘accept and perform the work in exchange for consideration, usually wages’.

This finding seemingly also influenced the view that Varnish failed to satisfy the personal performance

requirement. On this issue, Judge Ross found that, whilst Varnish certainly could not substitute

another rider to carry out her obligations under the PAA,

she was not personally performing

work provided by British Cycling. Rather, she was simply ‘performing a commitment to train in

accordance with the individual rider agreement’ in the hop e that she would be selected for

Everson v British Cycling Federation, case no 2405213/99, 12 June 2001.

Miss J Varnish v British Cycling and UK Sport, case no 2404219, 10–17 December 2018.

Ibid, at [274].

Miss J Varnish v British Cycling [2020] UKEAT/0022/20/LA (citing Quashie v Stringfellow Restaurants Ltd [2013] IRLR

99 at [9] per Elias LJ).

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; Nethermere

(St Neots) Ltd v Gardiner & Another [1984] ICR 612.

Varnish, above n 35, at [158]–[159].

Ibid, at [160]–[163].

Ibid, at [224].

Ibid, at [230].

Ibid, at [154].

Varnish, above n 37, at [41].

Varnish, above n 35, at [245].

Ibid, at [139].

As was made clear in Express and Echo Publications Ltd v Tanton [1999] IRLR 367, a contractual term indicating that the

individual may provide a substitute to carry out the work is inconsistent with a contract of employment.

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international competition.

Given that the determination of personal performance here hinged

heavily on the so-called ‘wage/work bargain’, one might say that it was the lack of mutual obligations

between the two parties that was fundamental in deciding the employment status of Varnish in this

case.

Now, for our purposes, it is interesting to consider what might have happened in the alternative

scenario if Varnish had not been dropped from Team GB in 2016, but instead had gone on to compete

in future professional events whilst funded by British Cycling. Let us say that, during one such event,

she negligently (or intentionally) injured a fellow competitor or spectator, perhaps in a similar manner

to Miguel Angel Lopez when he punched a fan at the Giro d’Italia in 2019.

If the current decision in

Varnish is also the benchmark for determining an employment relationship in the law of tort, then

British Cycling would clearly not be held vicariously liable for this act. Nevertheless, it must be ques-

tioned whether the definition of an employee might – and indeed should – differ depending on the

area of law in question. As I explore below, the generally received view now favours a context-specific

approach to the definition of employment. However, there has been very little critical discussion as to

what extent cases from employment law (and indeed other areas of law) might provide an instructive

steer in determining the scope of vicarious liability. The following sections seek to fill in this gap in the

literature, as well as hopefully shedding some light on the relevance of Varnish to the vicarious liability

of NGBs.

(b) Employment law and vicarious liability: time for harmonisation?

Until fairly recently, it had long been assumed that the definition of an ‘employee’ was the same across

multiple strands of the law (whether that be employment, insurance, intellectual property or tort

law).

As testament to this fact, many of the leading monographs and textbooks discussing the neces-

sary relationship for vicarious liability refer interchangeably to labour law cases.

However, recent

judicial statements appear to now cast some doubt on this idea. In particular, Lady Hale in

Barclays suggested that whilst it might be ‘tempting to align the law of vicarious liability with employ-

ment law’, it would ultimately be going ‘too far down the road to tidiness’ to do so in light of the dif-

fering contextual reasons in each domain.

This appreciation of context-specificity is echoed by Ward

LJ’s function-over-form approach in JGE v English Province of Our Lady of Charity.

As his Lordship

explains:

If the case is one where an employee seeks a remedy against his employer, for example for unfair

dismissal, then the case does require that the true relationship of employer/employee be estab-

lished in order to found the claim … On the other hand, the remedy of an innocent victim

Varnish, above n 35, at [157], [242].

This is also reinforced by the fact that the ET’s findings on mutuality of obligation constituted the bulk of Varnish’s

appeal in the EAT.

L Ostlere ‘Miguel Angel Lopez escapes punishment after punching Giro d’Italia fan who knocked him off bike on stage

20’ The Independent 1 June 2019, available at https://www.independent.co.uk/sport/cycling/giro-ditalia-2019-miguel-angel-

lopez-punches-fan-video-watch-crash-a8939806.html.

P Case ‘Developments in vicarious liability: shifting sands and slippery slopes’ (2006) 22 PN 161 at 164; P Atiyah

Vicarious Liability in the Law of Torts (London: Butterworths, 1967) pp 31–33; A Stewart ‘Redefining employment?

Meeting the challenge of contract and agency labour’ (2002) 15 Australian Journal of Labour Law 235.

See eg, A Gray Vicarious Liability: Critique and Reform (Oxford: Hart Publishing, 2018) ch 9; N McBride and R Bagshaw

Tort Law (London: Pearson, 6th edn, 2018) ch 31; M Lunney et al Tort Law: Text and Materials (Oxford: Oxford University

Press, 6th edn, 2017) ch 15; S Deakin and Z Adams Markesinis and Deakin’s Tort Law (Oxford: Oxford University Press, 8th

edn, 2019) ch 19.

Barclays, above n 5, at [29].

JGE, above n 1. See also Jones v Tower Boot Co [1997] 2 All ER 395 (the term ‘course of employment’ here was, in the

context of the Race Relations Act 1976, given a wider meaning than it currently possesses under the common law of vicarious

liability).

226 James Brown

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against the employer of the wrongdoer has a different justification rooted, as we have seen, in

public policy. The fluid concept of vicarious liability should not, therefore, be confined by the

concrete demands of statutory construction arising in a wholly different context.

Now, it is worth highlighting that not every employment law scholar has subscribed to this viewpoint.

Butlin and Allen, for instance, are perhaps the most prominent advocates of a harmonising approach

to the employment relationship, and they suggest that ‘the law on vicarious liability and worker status

should march hand in hand’ because they are ‘inextricably interlinked’.

In this, they promote a con-

flation of the employment and vicarious liability contexts in order to avoid a ‘damaging and undesir-

able’ risk of ‘regulatory dissonance’,

as well as to ‘ensure legal certainty for both employers and

employees across different strands of the law’.

Pitt adopts a similar view, arguing that it would be

‘undesirable if different tests were to develop for identifying contracts of employment according to

what was at stake’.

One of the key tenets of this view is that it helps to ensure ‘consistency between

two interwoven strands of the law’.

However, if, as I suspect, the policies at play are oftentimes dif-

ferent in both the employment and vicarious liability contexts, then a lack of consistency between

them becomes not just unproblematic, but also perhaps sometimes desirable. As I explore shortly,

the notion of victim compensation is one policy goal that is arguably more pressing in the context

of vicarious liability than it is in the context of employment law.

For such reasons, I find Butlin and Allen’s view unconvincing, and this can perhaps be best illu-

strated by considering the mutuality of obligation requirement in both employment and tort law. More

specifically, whilst the concept of mutual obligations has been described as the most ‘prominent’

and

‘essential’

feature of contemporary employment protection litigation, it is, I suggest, a largely irrele-

vant factor in the determination of an employer’s strict liability for the torts of their employees. As

Kidner opines, an analysis of the mutuality requirement is likely to skew our view of the employer-

employee relationship ‘towards the demands of employment law and the policies embedded therein’.

In fact, the most recent judgment of the EAT in Varnish suggests an even more contextualised role for

mutuality of obligation, with Mr Justice Choudhury highlighting that it may only be a useful criterion

in employment law for cases involving intermittent working environments.

As such, it is suggested

that the theory of control is a much more apt consideration for vicarious liability cases, and it should

certainly not be viewed as possessing the same importance in this context as the concept of mutuality

or other employment law-specific considerations (such as whether an individual is treated as an

employee for tax purposes). This is so for two reasons.

First, it must be recognised that the concept of mutuality focusses solely on the relationship

between the purported employer and employee. In contrast, and as Ward LJ in JGE referred to

above, vicarious liability cases possess an added component: an innocent third-party victim. In this

regard, the theory of control appears to be a far more useful factor to consider. Whilst it is true

that the control is exercised by the employer over the employee, the existence or absence of such con-

trol has an important moral and normative impact on third parties. Three particular cases illustrate

this point well.

Ibid, at [59].

S Butlin and R Allen ‘Worker status and vicarious liability: the need for coherence’ (2018) (University of Cambridge

Faculty of Law Research Paper No 21/2018) at 2.

Ibid.

Ibid, at 1.

G Pitt Employment Law (London: Sweet and Maxwell, 9th edn, 2014) pp 102–103.

Butlin and Allen, above n 56, at 11.

J Prassl The Concept of the Employer (Oxford: Oxford University Press, 2015) p 30.

Nethermere, above n 38, at 632 per Dillion LJ.

R Kidner ‘Vicarious liability: for whom should the employer be liable?’ (1995) 15 LS 47 at 47.

Varnish, above n 37, at [39].

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The first is that of Home Office v Dorset Yacht Co Ltd,

a case in which the government were held

liable in negligence for a failure to control the actions of several borstal boys. Whilst it is clear that the

context of the proceedings was different in this case (the claimants preferring instead to base their

claim on primary liability grounds),

Dorset Yacht is still of great importance in highlighting that

‘control imports responsibility’ when assessing the liability of a defendant for the actions of another.

Such comments also provide us with a useful framework for examining the relationship between

employment law and vicarious liability: decisions in the former should only be instructive for the latter

when the focus is on those cases, or parts of cases, which share the same underlying policies. Whilst

Dorset Yacht indicates that control is one such policy that straddles both areas of law, mutuality of

obligations does not. Likewise, deep pockets and loss spreading are fine examples of theories that

are important for vicarious liability, but not particularly relevant for employment law purposes.

The fact that many individual athletes (such as Varnish) are required to apply for funding may indi-

cate that such athletes do not possess deep pockets, at least not vis-à-vis their NGB. However, whilst

such an analysis is relevant for vicarious liability purposes, it is of far less normative importance in the

employment context when dec iding whether an individual was unfairly dismissed.

This argument can be sharpened by taking a second example from the facts of O’Kelly v Trusthouse

Forte.

In this case, a hotel employed wine butlers on a regular – yet casual – basis, such that the hotel

was not obliged to provide (and the staff were not obliged to accept) any work. When one of the but-

lers was fired, his claim for unfair dismissal was rejected by the Court of Appeal on the basis that his

relationship with the hotel lacked the necessary mutuality of obligation. However, once we drop the

‘unnecessary baggage’ of additional employment law provisions such as the need for mutuality,

we can see how a vicarious liability claim might have succeeded on the facts of O’Kelly. As Kidner

posits, in light of the ‘divergence of the needs of employment law and vicarious liability’, it would

be entirely surprising if the hotel was not vicariously liable for one of their casual waiters negligently

spilling wine over a patron.

It is likely that Peel and Goudkamp also had this case in mind when they

correctly argued that there is something distinctly ‘odd’ about a scenario whereby an employer exhibits

close control over a tortfeasor’s manner of work, yet the employer is not held liable for the tortfeasor’s

acts simply because they had the option to dec line him work at certain times.

With this in mind,

I can do little more than to echo McKendrick’s view that the ‘test for the existence of an employment

relationship should depend upon the legal question which is being asked’.

In this light, we perhaps

ought to treat cases such as Kafagi v JBW Group Ltd – which refer indiscriminately to purely employ-

ment law policies such as mutuality of obligation in determining the scope of vicarious liability

–

with a degree of caution.

A third and final case law example illustrating the different policies at play in employment and tort

law can be found in Sedley LJ’s judgment in Dacas v Brook Street Bureau (UK) Ltd.

Whilst the

employment tribunal in these proceedings had previously concluded that no employment relationship

existed between the claimant and Wandsworth Council for the purposes of an unfair dismissal claim,

[1970] AC 1004.

cf J Gardner ‘What is tort law for? Part 1: the place of corrective justice’ (2011) 30 Law & Phil 1 at 19 (arguing that

‘Dorset Yacht should have been treated as a vicarious liability case’).

Dorset Yacht, above n 65, at 1055 per Lord Pearson. See also Kafagi v JBW Group [2018] EWCA Civ 1157 at [41] per

Singh LJ.

[1984] 1 QB 90.

P Morgan ‘Vicarious liability for group companies: the final frontier of vicarious liability?’ (2015) 31 PN 276 at 295.

Kidner, above n 63, at 50. As he further elaborates (at 49), ‘the mutuality of obligation argument, while highly significant

for employment law, may not prove too damaging for vicarious liability since it can be argued that when the waiters presented

themselves for and began work there was a binding obligation on both sides’.

E Peel and J Goudkamp Winfield and Jolowicz on Tort (London: Sweet and Maxwell, 19th edn, 2014) para [21-011].

E McKendrick ‘Vicarious liability and independent contractors – a re-examination’ (1990) 53 MLR 770 at 784.

Kafagi, above n 67, at [50] (Singh LJ referring to the fact that the tortfeasor-bailiff in this case could turn down work

offered by the respondent company).

[2004] EWCA Civ 217.

228 James Brown

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his Lordship maintained that if the issu e of employment had arisen in relation to a personal injury

action – instead of the ‘more abstract question of contract law’–a different result would have ensued.

In other words, had Mrs Dacas injured a third party by negligently leaving cleaning equipment in a

dangerous area, it would be a ‘near-certainty’ that vicarious liability would befall the council, and that

those advancing an alternative submission ‘could look forward to a bad day in court’.

Again, this

illustrates the normative importance of third-party victims in vicarious liability cases, and it may also ten-

tatively suggest that some judges are of the view that the right to bodily integrity is perhaps deserving of

greater protection than the right not to be unfairly dismissed. Given Dagan’s comments – which suggest

that ‘our lives are divided into economically and socially differentiated segments, and each such ‘transac-

tion of life’ has some features that are of sufficient normative importance… that justifies a distinct legal

treatment’

– this may be a sensible distinction to make.

I have discussed in the previous sect ion that the primacy of control in the context of vicarious liability

is arguably justified in light of its normative significance in relation to third parties. To suggest that

mutuality of obligations is equally as relevant here is, in the words of Posner, to allow that concept

to become ‘unmoored from any plausible goal of employment’ law.

Nevertheless, we might also

identify a second reason for our focus on control in this context: it overlaps with several other theories

of vicarious liability in a way that mutuality and personal performance clearly do not.

This pluralistic

point is an important one, as I have demonstrated elsewhere that a determination of vicarious liability

based on multiple converging theories is far more justifiable than a finding based only on one theory.

This is predominantly because, as Giliker points out, the oretical analysis can help to ‘aid clarity ’ by

providing some substance to the ‘building blocks of vicarious liability’.

Consequently, whilst the

overwhelming scholarly and judicial consensus suggests that control alone ought not to be determina-

tive as a test for employer liability,

I believe that it could still be viewed as a prominent concern so

long as its overlap with other relevant theories is made clear. This is largely in accordance with

Morgan’s view, when he suggests that control could still be a highly useful tool in helping us to dis-

tinguish between employees and independent contractors.

The most notable overlap here is that between control and the two forms of enterprise liability out-

lined in the introduction. We might recall that the notion of fairness – which has recently been her-

alded as the ‘most influential idea [of vicarious liability] in modern times’

– encapsulates the idea

Ibid, at [74].

Ibid, at [72]. Note also D Cabrelli Employment Law in Context (Oxford: Oxford University Press, 4th edn, 2020) pp 133–

134 (arguing that the general trend and reasoning in Dacas was ‘clearly motivated by policy considerations… at the expense

of doctrinal coherence’).

H Dagan Reconstructing American Legal Realism and Rethinking Private Law Theory (Oxford: Oxford University Press,

2013) p 37.

E Posner ‘The economic basis of the independent contractor/employee distinction’ (2021) 100 Texas Law Review 353 at 378.

Of course, one might make the point that the benefit formulation of enterprise liability overlaps to some extent with

mutuality of obligation. However, it seems to me that benefit is more closely linked to the notion of control than to the con-

cept of mutual obligations. The latter appears to be more concerned with whether there is an obligation to work, rather than

whether this obligation provides a benefit. In this regard, just because mutual obligations exist does not also mean that a

benefit exists (and vice versa). This is illustrated on the facts of both Varnish and O’Kelly: in both cases, the defendant

was receiving a benefit (explained below in the context of Varnish), but mutuality of obligations was found not to exist in

either scenario.

JBrown’Developing a contextual-pluralist model of vicarious liability’ (2021) 28 Tort Law Review 123 at 125.

P Giliker ‘Rough justice in an unjust world’ (2002) 65 MLR 269 at 276; P Giliker Vicarious Liability in Tort: A

Comparative Perspective (Cambridge: Cambridge University Press, 2010) p 251.

Cox v Ministry of Justice [2016] UKSC 10 at [21] per Lord Reed; CCWS, above n 2, at [49] per Lord Phillips; Atiyah,

above n 51, p 16.

P Morgan ‘Certainty in vicarious liability: a quest for a chimaera?’ (2016) 75 Cambridge Law Journal 202 at 203.

Armes v Nottinghamshire County Council [2017] UKSC 60 at [67] per Lord Reed.

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that an employer who benefits from a particular activity ought to simultaneously bear the burdens of

that conduct.

According to Flannigan, the notion of benefit is intrinsically linked to the theory of

control, in that ‘a person’s ability to benefit in an equity or residual sense normally depends on

whether or not that person controls the performance of the work’.

Morgan too makes a similar

point when he outlines that ‘[a]cting on behalf of the employer, and control, also link to [the]

wider notion of enterprise liability’.

Both control and benefit appear to overlap with the concept

of integration, such that the terms ‘control’, ‘integration’ and ‘benefit’ can often be used interchange-

ably in most instances. Kidner makes the connection between the first two, when he highlights that the

‘degree of control exercised by the employer may well depend on the degree to which the “employee” is

integrated into the activities of the enterprise’.

In this manner, Be ll is correct to illustrate that control

can be (and indeed has been in Tomlinson LJ’s Court of Appeal judgment in Armes v Nottinghamshire

County Council

) accorded ‘indirect relevance’ by assessing the integration of an activity into the

defendant’s enterprise.

Furthermore, various judges have demonstrated that integration is also

closely interlinked with any benefits enj oyed by an employer. This was explicitly recognised by

Lord Reed in Cox v Ministry of Justice,

and Irwin LJ in the Court of Appeal in Barclays similarly

outlined that the tortfeasor in that case was sufficiently integrated into the business activity of the

defendant because his work was primarily done for the benefit o f the bank.

Given that ‘control’, ‘integration’ and ‘benefit’ all appear to be cut from the same cloth, we might

make the following observation: if an individual is subject to strict control by an organisation, it is

likely that they are also integrated into that organisation’s business activities and providing a benefit

to that entity. It is no surprise, then, that an analysis of fairness appears to justify vicarious liability for

many funded individual athletes. In Varnish, for instance, it was reported that the ‘ultimate goal’ for

both British Cycling and its athletes was to ‘win medals for the British Team’.

Given that the benefit

derived from the tortfeasor’s activities need not necessarily be financial in nature,

one may simply

point to the fact that success would ‘reflect well on the institution’ as one of the benefits received

by British Cycling.

However, it is also evident that an NGB’s failure to meet their annual medal

and performance targets (as set by UK Sport) will likely lead to ‘savage cuts’ on the funding offered

to that sport,

so it is arguably the case that British Cycling also reap a financial benefit from the high

degree of control that they exercise over their athletes. Moreover, it was also noted in the EAT that the

NGB were able to make use of Varnish’s image ‘in connection with the promotion, publicity or explan-

ation of the Podium Programme’,

again suggesting a profit-making benefit to both British Cycling

and UK Sport.

In addition to fairness, we might also say that control overlaps to a significant extent with the

risk-related formulation of enterprise liability. The inherent link between control and risk is illustrated

once again by Flannigan when he states that the ‘ability to control is what enables the employer to take

risks. When the employer has no control, he is not in a position to apply his risk set to the activity or

See generally, J Fleming The Law of Torts (Sydney: LBC Information Services, 9th edn, 1998) p 410.

R Flannigan ‘Enterprise control: the servant-independent contractor distinction’ (1987) 37 University of Toronto Law

Journal 25 at 33.

Morgan, above n 69, at 290.

Kidner, above n 63, at 62. Similarly, C Witting ‘Modelling organisational vicarious liability’ (2019) 39 LS 694 at 705 refers

to an employer’s ability to control as an ‘integration mechanism’.

[2015] EWCA Civ 1139 at [15].

A Bell ‘The liability of local authorities for abuses by foster parents’ (2018) 34 PN 38 at 40.

Cox, above n 82, at [23].

[2018] EWCA Civ 1670, at [51]–[52].

Varnish, above n 35, at [80].

Cox, above n 82, at [30].

Varnish, above n 37, at [47].

Varnish, above n 35, at [28]; J Toney ‘Team GB set to scrap medal targets for Tokyo Olympics’ The Independent 10 June

2021, available at https://www.independent.co.uk/sport/olympics/tokyo-games-2021-great-britain-b1863512.html.

Varnish, above n 37, at [5].

230 James Brown

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operation’.

This seems applicable to the facts of Varnish, in that we might say that the existence of

the PAA – which includes the package of benefits provided by the NGB and the concomitant obliga-

tions imposed on athletes – enables (and thus also increases) the risk of injury to others. The extent to

which it is increased, however, perhaps depends on the type of act committed. Given that British

Cycling only exercise control over (and benefit from) certain aspects of Varnish’s lif e, it may be

that vicarious liability would only be appropriate for acts intrinsically linked to that control/benefit.

By way of example, we have seen that the NGB were able to exercise significant control over

Varnish’s use of social media, such that any tortious comments made by Varnish on Twitter could

be fair game for vicarious liability. Similarly, given that British Cycling reap the (reputational and

financial) benefit of medals from Varnish’s performances, any negligent injury she causes during com-

petition should also be susceptible to vicarious liability.

Contrast this with a scenario whereby Varnish assaults her coach in anger after a particularly bad

performance at an event. Given that the NGB allow Varnish to choose her own coach, it is arguably far

less appropriate to impose vicarious liabi lity on British Cycling for this act. In this manner, we might

say that something similar to the harm-within-risk rule from legal causation ought to operate here,

with the result that control, benefit and risk all need to overlap to some extent before vicarious liability

is deemed justifiable. This point was recognised by Bell when he suggested that both ‘benefit and risk

must be kept close together if an enterprise theory is to hold’.

100

With reference to the facts of Armes,

he further elaborates that the benefit to the council in utilising foster parents in this case was in ‘run-

ning the child welfare system/discharging its duties, so this should then remain the focus of the risk

creation point’.

101

An application of vicarious liability to the individual sporting context appears to

further reinforce the need to heed this advice.

With these points in mind, it is useful to step back and consider what lessons we might learn from a

policy-oriented approach to Varnish and, more broadly, what this potentially means for the vicarious

liability of many NGBs. It is arguable that, if we change the facts in Varnish to emphasise the potential

negligence of the claimant (much like Sedley LJ did in Dacas), British Cycling ought to be vicariously

liable for tortious harm caused by Varnish. Under the approach advocated here, control – already

established as significant in the ET’s judgment – would be afforded greater importance, with the

mutuality and personal performance factors (which pointed in the opposite direction to control in

the tribunal’s decision) concomitantly being downplayed. This analysis is reinforced by the fact that

control overlaps to a significant extent with enterprise liability, and both fairness and risk would seem-

ingly also justify the imposition of vicarious liability for funded athletes in many scenarios. In add-

ition, the existence of funding under both the PAA and APA may also illustrate that the NGB has

deeper pockets than the individual athlete, and that they are also more able to adequately spread

the loss of any damages award.

Now, this is not to say that Varnish was incorrectly decided, and nor does it mean that all funded

athletes should now be classed as employees for the purposes of unfair dismissal. Rather, the policy-

oriented approach advocated here allows us to recognise, as the Supreme Court did in Pimlico

Plumbers Ltd v Smith,

102

that an athlete can be an employee for one purpose, and self-employed

for another. This is important, in that it helps us to avoid those doomsday arguments that are

often associated with the provision of employment rights and benefits to funded athletes.

103

For

instance, it has been estimated that, had Varnish been found an employee of British Cycling or UK

Flannigan, above n 86, at 35.

This is often also referred to as the ‘loss within the scope of duty’ rule. See eg T Keren-Paz ‘Liability for consequences,

duty of care and the limited relevance of specific reliance: new insights on Bhamra v Dubb’ (2016) 32 PN 50.

100

Bell, above n 90, at 41.

101

Ibid.

102

[2018] UKSC 29.

103

See the discussion in C Fursdon et al ‘The Jess Varnish decision – why British athletes are still not considered “employ-

ees” and what it means for athletes and NGBs’ LawInSport 5 April 2019, available at https://www.lawinsport.com/topics/item/

the-jess-varnish-decision-why-british-athletes-are-still-not-considered-employees-and-what-it-means-for-athletes-and-ngbs.

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Sport, many NGBs would have encountered ‘serious financial difficulties’, with one in five British ath-

letes facing a funding cut.

104

2. Beyond funded athletes: viarious liability in other individual sports

In light of the prima facie case for the vicarious liability of funded athletes, we might take this analysis

a step further and question whether a similar determination could equally apply to other professiona-

lised individual sports where funding is absent. In particular, this requires us to examine whether the

theoretical and contextual arguments applicable to funded athletes are equally as strong when applied

to non-funded athletes. At first glance, the answer appears to be ‘no’. A simple deep pockets analysis,

for instance, suggests that there is no need for vicarious liability at all in this scenario, as non-funded

professional athletes are likely to be solvent and able to meet a significant damages award themselves.

Consequently, when we see various tempestuous tennis stars engaging in potentially harm-causing

activities – such as Novak Djokovic negligently hitting a line judge with a tennis ball at the 2020

US Open;

105

Nick Kyrgios hurling his racket into the crowd at Wimbledon in 2015;

106

David

Nalbandian wounding a line umpire after kicking out at an advertising board in 2012;

107

and Juan

Ignacio Chela spitting at his opponent Lleyton Hewitt in 2005

108

– we might justifiably conclude

that there is no need to consider the potential liability of a governing body at all in these scenarios.

After all, both corrective justice and deterrence seem to point towards imposing direct liability on

the athletes, and the main compensation rationale for vicarious liability largely falls away when we

consider the lucrative career of a professional tennis player.

However, this analysis may be criticised as under-inclusive. Imposing direct liability on the tortfea-

sor may only be a viable option for those athletes at the very apex of the sport who regularly compete

for the biggest prizes in tennis. In contrast, a negligence claim against those athletes lower down the

pecking order is far less feasible. In fact, according to a 2013 study by the International Tennis

Federation (ITF), around 45% of the 13,736 professional tennis players earned nothing from the

sport in that year,

109

and athletes placed outside of the top 200 ranking spots were unlikely to earn

more than £40,000 in prize money over the course of those 12 months.

110

As such, when we hear

of stories such as those involving former world number 248 Harmony Tan – who accused a similar-

ranked opponent of intentionally hitting her in the eye with a tennis ball during an ITF event

111

– we

might conclude that the vicarious liability of the relevant tennis governing body is much more

104

Russell and Nicholson, above n 27. Note also the argument made by Thomas Linden QC (the lawyer for British

Cycling), who suggested that a judgment for Varnish would have been equivalent to the ‘skies falling in’ for UK NGBs.

See T Cary ‘ Jess Varnish unlikely to hear outcome of tribunal for at least four weeks’ The Telegraph 18 May 2020, available

at https://www.telegraph.co.uk/cycling/2020/05/18/jess-varnish-unlikely-hear-outcome-tribunal-appeal-least-four/.

105

‘Novak Djokovic apologises after hitting line judge with ball at US Open’ BBC News 7 September 2020, available at

https://www.bbc.com/sport/tennis/54052345. For a previously similar incident involving the Canadian player Denis

Shapovalov, see ‘Denis Shapovalov fined $7000 for smashing ball in tennis umpire’seye’ The Guardian 6 February 2017,

available at https://www.theguardian.com/sport/2017/feb/06/denis-shapovalov-fined-smashing-ball-tennis-umpire-eye.

106

E Addley ‘Nick Kyrgios bounces racket into crowd during tantrum at Wimbledon’ The Guardian 3 July 2015, available

at https://www.theguardian.com/sport/2015/jul/03/kyrgios-bounces-racket-spectators-tantrum-wimbledon.

107

D Ornstein ‘David Nalbandian disqualified from Queen’s final after kick’ BBC News 18 June 2012, available at https://

www.bbc.co.uk/sport/tennis/18491229.

108

See eg C Seddell ‘The 13 nastiest on-court spats in tennis history’ Bleacher Report 26 October 2011, available at https://

bleacherreport.com/articles/908424-13-nastiest-on-court-spats-in-tennis-history-video (also reporting other various infam-

ous tennis assaults, such as Stefan Koubek choking Daniel Koellerer at an ATP event in 2010).

109

‘Tennis match-fixing “a secret on the tour everybody knows”’ BBC News 19 January 2016, available at https://www.bbc.

co.uk/sport/tennis/35356550.

110

‘Tennis match-fixing allegations explained’ BBC News 18 January 2016, available at https://www.bbc.co.uk/news/uk-

35343063.

111

‘French player accuses opponent of intentionally hitting her in the eye with ball’ Tennis World 13 January 2020, avail-

able at https://www.tennisworldusa.org/tennis/news/Tennis_Stories/82713/french-player-accuses-opponent-of-intentionally-

hitting-her-in-the-eye-with-ball/. Unfortunately, this is a rather common practice amongst tennis players. See eg ‘Nick

232 James Brown

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appropriate here. This is reinforced by the healthy financial status of many organisations that seek to

regulate their respective sports. One example is that of the PGA Tour in golf. Despite its status as a

non-profit organisation, the PGA Tour actually boasts an annual revenue in excess of US$1 billion.

112

This, it is suggested, feeds into a number of other relevant points here.

First, the PGA Tour is actually a competition organiser (rather than an NGB),

113

and it may be that

organisers of sports competitions could be just as susceptible to vicarious liability as governing bod-

ies.

114

Given that control over non-funded athletes is often exercised simultaneously by varying bodies,

it might be that dual vicarious liability is sometimes appropriate in this context.

115

This form of liabil-

ity allows courts to find multiple employers strictly liable for the tort of an employee, and this seems to

be an inherently useful tool for recognising that, in many scenarios, different employers may well pos-

sess ‘different levels of responsibility’ according to the degree of control they enjoy.

116

Such dual liabil-

ity could be particularly useful in sports such as boxing, where the so-called ‘alphabet soup’ of

sanctioning organisations – which includes four different bodies overseeing six world champions in

each of 17 different weight categories – undoubtedly complexifies the analysis.

117

Secondly, tennis is clearly not the only sport in which it might be appropriate to hold a regulator

vicariously liable, and it is for such reasons that I examine how this analysis might also be applied to

the sport of golf. The potential for injury here is obvious, particularly to spectators. This is evidenced

by the recent incident at the 2018 Ryder Cup, where an onlooker was blinded in one eye after being hit

by Brooks Koepka’s wayward shot.

118

Whilst there was no evidence that Koepka was negligent in his

drive, it would not be difficult to imagine – following the line of ‘reckless duffers’ cases such as Pearson

v Lightning

119

and Phee v Gordon

120

– a slightly different scenario in which negligence could be estab-

lished. For instance, had it been established that Koepka was intoxicated when he took the shot –

much like former professional golfer Rocco Mediate, who admitted that drinking whilst on PGA

Tour courses was ‘normal’ for him

121

– it may have been justifiable to hold the organisation respon-

sible for this harm.

Third, in examining the potential scope of vicarious liability in these sports, it must be highlighted

that my analysis is consistent with the Supreme Court’s recent clarification of control in CCWS. There,

Lord Phillips highlighted that control is now more about whether an employer can direct what an

employee does (rather than simply how he does it).

122

As such, the exercise conducted here is similar

to that carried out by Morgan under his ‘dual axis’ approach to employer liability.

123

On this basis, he

highlights various factors that go towards assessing both an employer’s ‘day to day control’ and an

employee’s ‘discretion in role’. These include, for instance, prescription of: working hours and

Kyrgios “wanted to hit” Rafael Nadal with shot at Wimbledon’ BBC News 4 July 2019, available at https://www.bbc.co.uk/

sport/tennis/48877052.

112

M Burke ‘The PGA Tour: a not-for-profit money machine’ Forbes 8 May 2013, available at https://www.forbes.com/

sites/monteburke/2013/05/08/the-pga-tour-a-not-for-profit-money-machine/#c21746d57339.

113

The governance of golf is instead left to the United States Golf Association (USGA) for US golf, and to The R&A for

every other country.

114

This accords with the analysis found in Gardiner et al, above n 15, p 395 (where it is highlighted that, in German law, ‘a

competition organiser or a sponsor could be considered an employer’).

115

For confirmation of this possibility, see Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ

1151.

116

D Brodie ‘The enterprise and the borrowed worker’ (2006) 35 Industrial Law Journal 87 at 89.

117

J Anderson The Legality of Boxing: A Punch Drunk Love? (Abingdon: Routledge, 2006) pp 65–70.

118

‘Ryder Cup: spectator blinded in one eye says she could have died on golf course’ BBC News 3 October 2018, available at

https://www.bbc.co.uk/sport/golf/45734449.

119

[1998] EWCA Civ 591.

120

[2011] CSOH 181.

121

M Bonesteel ‘Now sober, pro golfer Rocco Mediate admits to drinking while playing PGA Tour events’ The Washington

Post 7 February 2019, available at https://www.washingtonpost.com/sports/2019/02/07/now-sober-pro-golfer-rocco-mediate-

admits-drinking-while-playing-pga-tour-events/.

122

CCWS, above n 2, at [36] per Lord Phillips.

123

P Morgan ‘Recasting vicarious liability’ (2012) 71 Cambridge Law Journal 615 at 642–643.

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location; uniforms; disciplinary systems; the use of certain methods and equipment; and when breaks

can be taken. An application of these factors to governing bodies and competition organisers in pro-

fessional tennis and golf highlights both their control over, and benefit from, the athletes competing

under their auspices, and this suggests that vicarious liability may sometimes be appropriate even for

non-funded athletes. This conclusion is also consistent with Dabscheck’s analysis, as he highlights how

a more nuanced assessment of the restrictions imposed upon professional jockeys – such as limited

control over their own attire, fitness levels, use of intellectual property rights and adherence to gam-

bling and drug codes – suggests that they ‘should be properly regarded as employees and not inde-

pendent contractors’.

124

Interestingly, this may have meant that, had negligence been established in

the seminal ‘sports torts’ case of Caldwell v Maguire and Fitzgerald (which involved allegedly ‘careless

riding’ by a professional jockey),

125

the British Horseracing Authority could have been held vicariously

liable for this injury.

Fourth, it must be conceded that not all scholars would agree with utilising vicarious liability to

hold NGBs and competition organisers responsible for harmful conduct. Some commentators

(such as Gray, for instance) would likely believe that it is more appropriate to hold such organisations

directly liable in negligence.

126

Given the need to prove fault for such an action, however, this may not

be an adequate solution for those who are convinced by my pro-liability stance in this context.

Consider, for instance, the aforementioned example involving Rocco Mediate: the PGA Tour would

likely only be liable in negligence for this harm if it could be shown that they were aware of the tort-

feasor’s inebriated state, but failed to take action. In contrast, (strict) vicarious liability would still apply

in such a scenario, irrespective of the organisations’ knowledge or any prior training they o ffered to the

athlete.

Likewise, others may suggest that a non-delegable duty – an exceptional no-fault based form of

primary liability – could be placed on sporting bodies to ensure that reasonable care is taken by par-

ticipants in individual sports.

127

Now, whilst I believe that the non-delegable duty might be able to

work alongside a pleading of vicarious liability (as occurred in a number of recent dental negligence

cases),

128

the concept is not sufficiently developed or determinate enough, in my opinion, to com-

pletely replace a vicarious liability claim. This is evidenced by the vast uncertainty that continues to

exist in relation to Lord Sumption’s guidance on non-delegable duties in Woodland v Essex County

Council.

129

Although his guidance was never meant to be ‘set in stone’,

130

it remains unclear as to

whether any of the tests outlined by Lord Sumption would be satisfied in relation to the individual

sports context.

131

In this light, Giliker concludes that vicarious liability remains the ‘stronger and

124

B Dabscheck ‘Sweated labour, literally speaking: the case of Australian jockeys’ in Y Lee and R Fort (eds) The Sports

Business in the Pacific Rim: Economic and Policy (New York: Springer, 2014) pp 322–325.

125

[2001] EWCA Civ 1054.

126

Gray, above n 52, pp 272–273.

127

C Beuermann Reconceptualising Strict Liability for the Tort of Another (Oxford: Hart Publishing, 2019); P Watts ‘The

travails of vicarious liability’ (2019) 135 Law Quarterly Review 7 at 11.

128

Ramdhean v Agedo [2020] 1 WLUK 406; Breakingbury v Croad (19 April 2021, unreported), County Court (Cardiff).

129

[2013] UKSC 66 at [23]. Lord Sumption outlined that non-delegable duties can be characterised by five defining fea-

tures: (i) the claimant is especially vulnerable or dependent; (ii) there is an antecedent relationship between the claimant and

defendant (which involves the latter exercising custody, care or charge over the former), and from which it is possible to

impute a positive duty to protect the claimant from harm; (iii) the claimant cannot control how the defendant performs

those obligations; (iv) the defendant delegates a function which is integral to the duty he assumes towards the claimant;

and (v) this function was performed negligently by the third party.

130

Ibid, at [38] per Baroness Hale.

131

To take a few examples, it is unclear whether an individual athlete could be meaningfully classed as ‘vulnerable’ for the

purposes of the first test. If so, is it also accurate to maintain that they are in the ‘custody, care or charge’ of an NGB? And

even if one could establish this requirement in relation to individual participants, it is doubtful that a spectator injured by a

wayward golf shot could equally be classed as dependent on the governing body. Finally, there is arguably vast uncertainty as

to what functions are ‘inherent’ to an NGBs duties. See, for instance, P Giliker, ‘Non-delegable duties and institutional liabil-

ity for the negligence of hospital staff: fair, just and reasonable?’ (2017) 33 PN 109 at 120.

234 James Brown

https://doi.org/10.1017/lst.2022.34 Published online by Cambridge University Press

more predictable option’ for claimants,

132

and it is perhaps for such reasons that the non-delegable

duty was not raised at all in the recent Barclays litigation.

Finally, it may be that the discussion here could lead some NGBs to seri ously consider imposing an

obligation upon all athletes in their sport to take out appropriate liability insurance. Indeed, if an ath-

lete is insured against any negligent harm he causes, the injured party is less likely to feel the need to

test the vicarious liability of an NGB in a court of law.

133

The practicality of this solution is, however,

largely dependent on two factors: the type of sport; and the extent of control exercised by the govern-

ing body. For some sports, such as tennis and golf, compulsory liability insurance for every athlete

might be a useful development for the governing bodies to consider, particularly in light of the poten-

tial for injury in these sports and the stringent regulation that these athletes are subjected to. For other

regulators, such as the World Darts Federation (WDF), this suggestion may be a rather pointless one.

Not only is darts a sport in which injuries hardly ever occur, but the WDF also take a relatively lenient

approach to the obligations of their players, and thus do not really possess the necessary degree of

control over their athletes to justify vicarious liability.

134

However, even if there are NGBs that wish

to mandate liability insurance for all participants, some burning questions remain: would such a devel-

opment lead to the end of pro-am tournaments, where professio nal and amateur athletes compete

together in a single event? It is one thing to require a professional athlete to take out appropriate liability

insurance, but it is another thing entirely to require an amateur player to do so, particularly considering

the likelihood that they may not be able to afford (or at least justify the cost of) such insurance. Likewise,

we might also ponder whether insurers would be willing to provide such cover at all. Boyes makes the

point that, in light of the increasing wealth of many top athletes, insurers may refuse to cover those who

play high-value opponents.

135

After all (and to slightly modify a concern first raised by Boyes), who

really wants to insure the person who might blind Rafael Nadal or Jordan Spieth?

(a) Tennis

Professional tennis is governed by a number of bodies, one of which is the aforementioned ITF.

136

The

ITF operates as the world governing body of tennis, with responsibilities including the enforcement of

the Rules of Tennis and the organisation of various tournaments (such as the four ‘Grand Slam’ tour-

naments, the international Davis Cup and Fed Cup, and the lower-rung ITF Men’s and Women’s

World Tennis Tours). The Association of Tennis Professionals (ATP) – which operates several com-

petitions under the ATP Tour and ATP Challenger Tour – acts as the governing body for men’s tennis,

whilst the Women’s Tennis Association (WTA) acts as the global governing body for women’s tennis.

Although Gibson argues that the economi c independence of professional tennis players means that no

governing body is exercising control over them,

137

a brief perusal of the ITF, Grand Slam and ATP

rulebooks suggest that this analysis is perhaps too simplistic. For example, with regard to the

132

Giliker, above n 5, at 71.

133

Somewhat paradoxically, this might mean that the exercise of even greater control over athletes could make NGBs less

likely to be held vicariously liable. However, even if the injured party was fully compensated by the tortfeasor’s liability insur-

ance, the vicarious liability of an NGB may still be tested if the insurer exercises their rights of subrogation.

134

World Darts Federation ‘Playing and tournament rules’ available at https://dartswdf.com/rules. A glance at the (rela-

tively brief) rules imposed by the WDF highlights that many obligations that are commonplace in other sports – such as

mandatory attendance at post-match conferences – are absent here. This is presumably because they are not as commercially

minded as many other NGBs.

135

S Boyes ‘Compensate footballers after injury, but don’t let insurance costs ruin the game’ The Conversation 28 February

2014, available at https://theconversation.com/compensate-footballers-after-injury-but-dont-let-insurance-costs-ruin-the-

game-23797.

136

To clarify, the analysis here is limited to those tournaments held in the UK (the most notable of which being

Wimbledon, but also including other events such as the Nitto ATP Finals, the Queen’s Club Championship and the

Eastbourne International). However, it may be that the present analysis could prove persuasive in other jurisdictions

where professional tennis events are commonly held, such as in France, Australia and the USA.

137

A Gibson Sports Law in Australia (Alphen aan den Rijn: Kluwer, 2017) paras [173]–[174].

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provisions laid down by the ITF and the Grand Slam Board (GSB), the rules outline that both bodies

can exercise control over: the discipline of athletes found guilty of doping or corruption;

138

the time

and location of matches;

139

the audible and visible actions of the athletes (including any ‘unsports-

manlike conduct’);

140

when athletes can take a break during a match;

141

and the prompt attendance

at post-match media conferences.

142

This latter requirement sparked international outrage during the 2021 French Open, when the for-

mer world number one Naomi Osaka cited mental health issues for her refusal to attend a post-match

press conference.

143

She was later fined US$15,000 for the failure to honour this obligation, and one

suspects that this was largely because the governing bodies in tennis stood to benefit from her inter-

action with the media. As the Grand Slam rulebook highlights, media appearances by the top stars

provides ‘valuable exposure to the media and fans’, and this in turn helps to ‘drive engageme nt’

with the sport.

144

One can see, therefore, parallels with respect to funded athletes like Varnish, as gov-

erning bodies here are enjoying a similar level of control over, and benefit from, non-funded athletes

too. This is reinforced by other stringent regulatory policies that are imposed by the ITF and GSB on

professional tennis players, such as: restrictions on their participation in other events;

145

the degree to

which they can promote their own sponsors;

146

and the close regulation of what attire and equipment

is appropriate to wear and use during competition. In particular, participants competing at

Wimbledon are famously obliged to wear white clothing,

147

and there are comprehensive regulations

on what footwear is acceptable for different types of court.

148

Likewise, the ATP rulebook exhibits many similar limits on an athlete’s discretion, both on and off

the court. In relation to on-court restrictions, the ATP can impose financial penalties on so-called

‘commitment players’–those ranked in the top 30 of the ATP’s official rankings – who fail to par-

ticipate in a certain number of competitions.

149

The rationale behind such a rule is, presumably,

that the ATP want to accrue the financial and promotional benefits of the top stars regularly compet-

ing under their brand. Regarding the off-field control of professional tennis players, it is noteworthy

that the ATP currently operate a so-called ‘STARS program’ .

150

This initiative, which was introduced

138

International Tennis Integrity Agency ‘Tennis anti-corruption program (2022)’ available at https://www.itftennis.com/

media/4483/2022-tennis-anti-corruption-program-english.pdf.

139

According to International Tennis Federation ‘2022 men’s and women’s ITF world tennis tour regulations’ available at

https://www.itftennis.com/media/7286/2022-itf-world-tennis-tour-regulations.pdf at 171 (hereafter ITF World Tennis Tour);

Grand Slam Board ‘2022 official Grand Slam rulebook’ available at https://www.itftennis.com/media/5986/grand-slam-rule-

book-2022-f-2.pdf at 39 (hereafter Grand Slam Rulebook), a player may be fined, respectively, US$50 or US$10,000 if they are

not ready to play when their match is called.

140

ITF World Tennis Tour at 177–179; Grand Slam Rulebook at 46–49.

141

ITF World Tennis Tour at 136; Grand Slam Rulebook at 21–22 (highlighting that participants are allowed to leave the

court for a ‘reasonable time’ for a toilet break once during a best-of-three sets match).

142

Athletes must attend their post-match media conference within a reasonable time (usually 60 minutes) of the conclu-

sion of each match: see ITF World Tennis Tour at 180; Grand Slam Rulebook at 45.

143

TCarayol‘Naomi Osaka will not speak to French Open press due to mental health impact’ The Guardian 27 May 2021,

available at https://www.theguardian.com/sport/2021/may/27/naomi-osaka-will-not-speak-to-french-open-press-mental-health-

tennis.

144

Grand Slam Rulebook at 45.

145

ITF World Tennis Tour at 161–163; Grand Slam Rulebook at 37.

146

ITF World Tennis Tour at 172–175; Grand Slam Rulebook at 41–43.

147

Grand Slam Rulebook at 41. See also All England Lawn Tennis Club ‘Clothing and equipment’ available at https://www.

wimbledon.com/en_GB/about_wimbledon/clothing_and_equipment.html.

148

ITF World Tennis Tour at 171–172; Grand Slam Rulebook at 39–41.

149

Association of Tennis Professionals, ‘2022 ATP official rulebook’ available at https://www.atptour.com/en/corporate/

rulebook,at10–13 (hereafter ATP Rulebook).

150

See also (ibid, at 14–15) the requirement that all players are to grant and assign to ATP ‘the right in perpetuity to record

in tangible form’ and to allow ATP to use their ‘name, performance, likeness, voice, and biography, in any and all media…

solely for purposes of advertising and promoting [the] ATP Tour’. Mixed Martial Arts fighters competing in the UFC are also

subject to similar limitations on the use of their intellectual property rights: see D Pannett ‘Collective bargaining in sport:

challenges and benefits’ (2015) 4 UCL Journal of Law and Jurisprudence 189 at 202.

236 James Brown

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in an effort to exploit the ‘popularity of athletes through sponsorships and media’,

151

mandates that

‘[a]ll players competing in the main draw of any ATP Tour tournament will be required, if asked, to

participate in ATP sponsored activities’.

152

Each player is required to dedicate up to two hours per

week to the program, as well as participating in up to two activity days for promotional purposes

(which may even take place ‘outside of an ATP Tour tournament week and/or location’).

153

Given

that such activities sometimes place athletes in a position of power by working with children,

154

could certainly be argued that, if a tennis player sexually abused a child as a result of his engagement

with this program, the ATP ought to be vicariously liable for this act. This is consistent not only with

case law demonstrating that the conferral of power on an employee strengthens the argument for

imposing vicarious liability,

155

but also with the so-called harm-within-risk rule posited above.

Unlike an on-court injury caused during a training session or warm-up (which the ATP

exercise very little control over and reap no b enefit from),

156

attendance at STARS events is something

that the ATP explicitly mandate and profit from. In this light, we could say that the risk of off-court

sexual abuse at a promotional event is within the scope of the governing body’s relevant control/

integration.

(b) Golf

Similar themes evident in tennis can also be identified in the context of professional golf. For instance,

the aforementioned PGA Tour, which identifies itself as the ‘world’s premier membership organiza-

tion for touring professional golfers’,

157

is able to exert a significant degree of control over those par-

ticipating in their events. According to its most recently published handbook covering the 2019–20

season, the competition organiser is able to regulate a players’ use of mobile devices and social

media throughout the tour,

158

as well as impose strict limitations on any sponsorships and equipment

deemed contrary to the spirit of golf.

159

As evidenced by PGA Tour Inc v Martin,

160

this even extends

to the PGA Tour’s attempts to control whether certain disabled competitors are permitted to use golf

carts to traverse the course (which, according to some, looked ‘lousy on television’).

161

A professional

golfer’s discretion in role is also inhibited by strict rules requiring them to maintain a certain pace of

play whilst out on the green,

162

as well as further restrictions on their signing of autographs and

151

A Sorrentini and T Pianese ‘The relationships among stakeholders in the organization of men’s professional tennis

events’ (2011) 3 Global Business and Management Research 141 at 149.

152

ATP Rulebook at 15.

153

Ibid, at 15–16.

154

See eg ‘Flashback: successful kids’ day supports more than 400 children in Budapest’ ATP Tour 20 April 2020, available

at https://www.atptour.com/en/news/budapest-2018-charity-event.

155

Bazley v Curry [1999] 2 SCR at [41]–[44] per McLachlin J; The Trustees of the Barry Congregation of Jehovah’s Witnesses

v BXB [2021] EWCA Civ 356 at [95] per Males LJ.

156

The lack of control over training and tactics is, for some scholars, crucial to the finding that a tennis player ought to be

viewed as an independent contractor. See C Flake ‘Getting to deuce: professional tennis and the need for expanding coverage

of federal antidiscrimination laws’ (2014) 16 Texas Review of Entertainment and Sports Law 51 at 62–63; A Gibson ‘The

Association of Tennis Professionals: from player association to governing body’ (2010) 10 Journal of Applied Business

and Economics 23; D Healey Sport and the Law (Sydney: UNSW Press, 2009) pp 59–60.

157

See https://www.pgatour.com/company/aboutus.html.

158

PGA Tour ‘ Player handbook and tournament regulations: 2019–20’ available at https://qualifying.pgatourhq.com/static-

assets/uploads/2019-2020-pga-tour-handbook--regs-09_10_19.pdf,at74–75 (hereafter PGA Tour Handbook).

159

Ibid, at 75–78 (for sponsorship limitations); at 60 (for equipment restrictions). See also the highly technical and

in-depth equipment rules produced by The R&A and USGA, available at https://www.randa.org/en/equipment-rules.

160

532 US 661 (2001).

161

R Sandomir ‘Golf; a by-the-book defence versus Martin’s reality’ New York Times 8 February 1998, available at https://

www.nytimes.com/1998/02/08/sports/golf-a-by-the-book-defense-versus-martin-s-reality.html.

162

PGA Tour Handbook at 67–70; The R&A ‘Pace of play manual’ available at https://www.randa.org/en/rules/pace-of-

play. See also ‘Plan to tackle slow play comes into effect’ European Tour 14 January 2020, available at https://www.european-

tour.com/european-tour/news/articles/detail/plan-to-tackle-slow-play-comes-into-effect/.

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consumption of alcohol during competitions.

163

This latter provision suggests that the PGA Tour

ought, in fact, to be held vicariously liable for any injury caused due to the negligent swing of an

intoxicated golfer, as the control exercised by the organisation over this conduct is closely related

to the relevant risk of harm.

Of course, this is not to say that professional golfers do not retain some form of control over their

activities. They are able to choose both their own caddy and which tournaments they wish to enter, but

even here the PGA Tour seem to have the last word. The organisation gives the final approval on each

caddy,

164

and members of the tour must compete in at least 25 events over the course of the year or

else risk a ‘major fine’ or suspension.

165

Much like with the obligation foisted upon ‘commitment

players’ by the ATP, we could say that this requirement to play a certain number of games is especially

important for vicarious liability purposes, as the governing bodies and competition organisers are

explicitly influencing the level of risk posed by their athletes. As such, Sharpe is seemingly correct

to argue that these control mechanisms ‘tend to show an employer-employee relationship between

the PGA Tour and its golfers’.

166

Given that this comment was made for the purposes of employment

and disability law, we could say that her argument is further strengthened when it is applied to the

context of vicarious liability (becaus e, as explained above, the normative importance of control is

even more significant in this context).

A similar state of affairs is also identifiable in women’s golf, where the Ladies Professional Golf

Association (LPGA) – and its concomitant LPGA Tour – operates in a functionally similar manner

to its male counterpart. One of the LPGA’s more interesting policies for our purposes arose in

August 2008, when the organisation attempted to enforce a new rule mandating that all participants

on the tour speak English during pro-am events and when interacting with the media.

167

The pur-

ported reason for this rule was to ‘please corporate sponsors’ and to ‘maximize the marketability of

its players’ in an attempt to improve the popularity of the tour.

168

Although the LPGA later back-

tracked on this policy (albeit with a version of the rule still remaining an option),

169

this example

shows that, by acceding to these demands, foreign women golfers were clearly asked to carry on an

activity that constituted ‘an integral part of the business activities’ of the LPGA, and were doing so

for its benefit.

170

Lloyd persuasively argues that, ‘[b]y controlling the language that an LPGA player

must speak, the LPGA is effectively exerting one of the most stifling and limited forms of employer

control’.

171

In this light, and as he further elaborates, the ‘courts must take a hard look at whether

a professional golfer is really an independent contractor when the tour mandates the language that

she must speak during the course of her membership on the tour’.

172

Conclusion

The adoption of a more contextual, policy-sensitive approach to an individual’s employment status

reveals that many NGBs and competition organ isers ought to be held vicariously liable for tortious

163

PGA Tour Handbook at 66, 71.

164

T Sharpe ‘Casey’s case: taking a slice out of the PGA Tour’s no-cart policy’ (1999) 26 Florida State University Law

Review 783 at 802.

165

See eg B Harig ‘Jordan Spieth must qualify for tour championship to avoid PGA sanctions’ ESPN 9 September 2018,

available at https://www.espn.co.uk/golf/story/_/id/24618330/jordan-spieth-faces-fine-suspension-misses-minimum-num-

ber-pga-tour-events.

166

Sharpe, above n 164, at 805.

167

J Newport ‘How the LPGA bungled on English’ Wall Street Journal 13 September 2008, available at https://www.wsj.

com/articles/SB122125269803829639 .

168

A Lloyd ‘You’re next on the tee, just remember to speak English! Could the LPGA really force players to learn and speak

English?’ (2009) 9 Virginia Sports & Entertainment Law Journal 181 at 182, 189.

169

S Patel Inclusion and Exclusion in Competitive Sport (London: Routledge, 2015) p 144.

170

Cox, above n 82, at [24] per Lord Reed. See also Martin, above n 160, at 669.

171

Lloyd, above n 168, at 189.

172

Ibid, at 189–190.

238 James Brown

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behaviour committed by athletes that compete under their auspices. This is a novel claim that has yet

to be made in the scant literature on vicarious liability in sport. In relation to funded athletes in indi-

vidual sports, it was maintained that the recent case of Varnish may provide an instructive roadmap

for the implementation of such a policy-oriented approach. It was highlighted that certain factors

prominent in employment law – such as mutuality of obligations and personal performance –

ought to be downplayed when dealing with the issue of vicarious liability for the purposes of tort

law. Conversely, this paper suggested that the notion of control ought to be prioritised in this context,

as this theory arguably has a much stronger moral and normative impact on third parties.

As a result of this discussion, a number of important claims were made. First, it was observed that

some athletes could be classed as employees for one purpose, but independent contractors for others.

This is largely in accordance with recent case law in this area, and it is an eminently sensible approach

insofar as it recognises the different policy considerations that underpin an unfair dismissal and vic-

arious liability claim. Secondly, and with reference to the facts of Varnish, it was also highlighted that

control, benefit and risk may all need to overlap to a significant extent in order to produce a harmo-

nious and logically consistent theory of enterprise liability. Given that enterprise liability has recently

been touted as the strongest and most convincing rationale for vicarious liability, this is an important

theoretical clarification that ought to be made in the law. Consequently, this is merely one example of

how a sport-specific analysis of vicarious liability could help to teach us some broader lessons about

the doctrine more generally.

Finally, this paper also established that it may be appropriate to impose vicarious liability on NGBs

and competition organisers for the tortious actions of non-funded professional athletes too. This was

illustrated most prominently with reference to the sports of tennis and golf. A brief perusal of the

overly intrusive regulatory measures that are evident in the rulebooks of the se sports demonstrates

that it would certainly be feasible to impose vicarious liability on bodies such as the ATP and the

PGA Tour. In this regard, and on a brief concluding note, it may be wise to end this paper with

the following salutary warning: if sporting governing bodies and competition organisers wish to

avoid the prospect of being held vicariously liable for the tortious behaviour of their athletes, they

ought to seriously consider reducing the extent of some of their on-field and off-field regulatory

policies.

Cite this article: Brown J (2023). The vicarious liability of sports governing bodies and competition organisers. Legal Studies

43, 221–239. https://doi.org/10.1017/lst.2022.34

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https://doi.org/10.1017/lst.2022.34 Published online by Cambridge University Press