Sheffield United FC: Hawk-Eyeing Up a Claim?
The FA Premier League’s (“PL”) 2019/2020 season has resumed following the disruption caused by Covid-19. Aston Villa FC (“AVFC”) v Sheffield United FC (“SUFC”) was the first of the PL’s 2019/2020 season’s rescheduled fixtures, which took place on 17 June 2020. Despite the match ending 0-0 there were two notable features.
Firstly – and most importantly – was PL’s, AVFC’s and SUFC’s tributes to those lost to Covid-19, and their support of Black Lives Matter’s campaign for justice and change following, and coming to a head after, the murder of George Floyd.
Secondly was the one-in-over-9,000-matches occurrence of Hawk-Eye Innovations’ (“Hawk-Eye”) Goal Line Technology (“GLT”) committing a ‘goal line incident’, as explained in this statement from Hawk-Eye released on 17 June 2020 shortly after the match between AVFC and SUFC:
‘During the first half of Aston Villa v Sheffield United match [sic] at Villa Park, there was a goal line incident where the ball was carried over the line by Aston Villa goalkeeper, No. 25 Nyland. The match officials did not receive a signal to the watch nor earpiece as per the Goal Decision System (GDS) protocol. The seven cameras located in the stands around the goal area were significantly occluded by the goalkeeper, defender, and goalpost. This level of occlusion has never been seen before in over 9,000 matches that the Hawk-Eye Goal Line Technology system has been in operation.
The system was tested and proved functional prior to the start of the match in accordance with the IFAB Laws of The Game and confirmed as working by the match officials. The system has remained functional throughout. Hawk-Eye unreservedly apologises to the Premier League, Sheffield United, and everyone affected by this incident’.
It has also been reported by BBC Sport that the Professional Game Match Officials Limited (“PGMOL”), a group that officiates across all PL, English Football League and The Football Association (“The FA”) Competition matches, ‘said that [the] video assistant referee [(“VAR”)] had not intervened due to the "unique" situation of the on-field match officials not receiving a signal’.
The significance of the incident, notwithstanding what could have happened if AVFC had gone 0-1 down had the goal been seen and decided on, is:
The two points SUFC have missed out on had they won 0-1 could be the difference between SUFC finishing in a higher league position at the end of the PL’s 2019/2020 season and/or qualifying for one of UEFA’s club competitions through its league position at the end of the PL’s 2019/2020 season; and/or
The one point that AVFC received for the 0-0 draw could be the difference between AVFC avoiding relegation from the PL and others – such as Watford FC, Bournemouth AFC and/or West Ham United FC – finishing in a lower league position at the end of the PL’s 2019/2020 season and/or being relegated from the PL based on their league position at the end of the PL’s 2019/2020 season.
This article will:
Set out the relevant rules concerning the PL’s use of GLT and VAR and consider whether the same were complied with during the match between AVFC and SUFC;
Consider whether SUFC could have a claim against PL or Hawk-Eye if because of the incident SUFC suffers a loss of revenue from finishing in a lower league position at the end of the PL’s 2019/2020 season and/or fails to qualify for one of UEFA’s club competitions through its league position at the end of the PL’s 2019/2020 season.; and
Consider whether other PL clubs could have a claim against PL or Hawk-Eye if because of the incident such other clubs suffer losses of revenue from finishing in a lower league position at the end of the PL’s 2019/2020 season and/or are relegated from the PL based on their league position at the end of the PL’s 2019/2020 season.
GLT and VAR in the PL
The rules and laws
The rules of the PL (“the PL Rules”), which can be found in the PL Handbook, provide the following in respect of PL’s use of GLT and VAR:
Rule A.1.81: ‘[GLT] means all necessary equipment for the purpose of assisting the referee to determine whether, in a League Match, a goal has been scored’;
Rule A.1.213: ‘"VAR” has the meaning set out in Rule K.25’;
Rule C.8: ‘Goal Line Technology shall be utilised at League Matches (save that, for the avoidance of doubt, a League Match shall proceed even if Goal Line Technology is unavailable for part or all of it). The referee’s decision as to whether a goal has been scored shall be final’ (emphasis added);
Rule K.25: ‘Each Club’s Stadium must have installed such Goal Line Technology as the Board shall specify from time to time and, in respect of each League Match, facilitate the installation of such equipment so as to enable the use of video assistant refereeing in accordance with any protocol issued by the International Football Association Board and/or the Board from time to time(“VAR”)’ (emphasis added);
Rule K.26.1: ‘[Each Club shall] ensure that [GLT] and VAR installed at its Stadium is properly maintained in accordance with all applicable requirements insofar as such maintenance is the responsibility of the Club and not the responsibility of any Person appointed by the League pursuant to Rule K.26.2’;
Rule K.26.2: ‘[Each Club shall] give all necessary cooperation to such Person appointed by the League to supply, install, maintain and operate such [GLT] and VAR and to any Person properly authorised by the League or FIFA to test or certify the Club’s [GLT] or VAR’;
Rule K.26.3: ‘[Each Club shall] use [GLT] and VAR only as specified by the Board from time to time’;
Rule K.27: ‘For the avoidance of doubt, ownership of the [GLT] installed and operated at each Club, and of all rights arising therefrom or in connection therewith, shall not belong to the Club’.
This author could not obtain any ‘protocol issued by… the [PL] Board’ (if one exists) referred to in rule K.25 of the PL Rules quoted above or the ‘Goal Decision System (GDS) protocol’ referred to in Hawk-Eye’s statement quoted above.
However, the International Football Association Board’s (“IFAB”), also referred to in rule K.25 of the PL Rules, Laws of the Game 2020/2021 (“LoG”) contain laws and protocols in respect of GLT and VAR that are obtainable. The current version of the LoG came into effect on 1 June 2020.
It should be noted that:
Rule B.15.1-2 of PL Rules state that the PL and the PL’s clubs agree to comply with the LoG, The FA’s Rules of the Football Association Limited (“The FA Rules”) and the statutes and regulations of FIFA;
Rule N.4 of the PL Rules states that match officials agree to be bound by and comply with the PL Rules, the LoG and The FA Rules; and
Article 3(e) of the PL’s Memorandum of Association, (see pg. 607 of the PL Handbook) state that the PL is to ‘to co-operate with The [FA] and the [IFAB] in all matters relating to international competitions or relating to the [LoG] and generally to adhere to and comply with the applicable rules and regulations of The [FA]’. Article 80 of the PL’s Articles of Association also states that the PL shall ‘adhere to and comply with [The FA Rules]’.
The LoG provide the following in respect of GLT and VAR:
Law 1, para. 11, GLT: ‘GLT systems may be used to verify whether a goal has been scored to support the referee’s decision… The indication of whether a goal has been scored must be immediate and automatically confirmed within one second by the GLT system only to the match officials (via the referee’s watch, by vibration and visual signal)… An independent testing institute must verify the accuracy and functionality of the different technology providers’ systems in accordance with the FIFA Quality Programme for GLT Testing Manual. If the technology does not function in accordance with the Testing Manual, the referee must not use the GLT system and must report this to the appropriate authorities. Where GLT is used, the referee must test the technology’s functionality before the match as set out in the Testing Manual’ (emphasis added);
Law 5, para. 2: ‘Decisions will be made to the best of the referee's ability according to the Laws of the Game and the ‘spirit of the game’ and will be based on the opinion of the referee, who has the discretion to take appropriate action within the framework of the Laws of the Game. The decisions of the referee regarding facts connected with play, including whether or not a goal is scored and the result of the match, are final. The decisions of the referee, and all other match officials, must always be respected’ (emphasis added);
Law 5, para. 4: ‘The referee may be assisted by a video assistant referee (VAR) only in the event of a ‘clear and obvious error’ or ‘serious missed incident’ in relation to… goal/no goal… The assistance from the video assistant referee (VAR) will relate to using replay(s) of the incident. The referee will make the final decision which may be based solely on the information from the VAR and/or the referee reviewing the replay footage directly (‘on-field review’)’ (emphasis added);
VAR Protocol, para. 1.1: ‘A video assistant referee (VAR) is a match official, with independent access to match footage, who may assist the referee only in the event of a ‘clear and obvious error’ or ‘serious missed incident’ in relation to: a. Goal/no goal…’;
VAR Protocol, para. 1.2.4: ‘Only the referee can initiate a ‘review’; the VAR (and other match officials) can only recommend a ‘review’ to the referee’ (emphasis added);
VAR Protocol, para. 2: ‘The referee may receive assistance from the VAR only in relation to four categories of match-changing decisions/incidents. In all these situations, the VAR is only used after the referee has made a (first/original) decision (including allowing play to continue), or if a serious incident is missed/not seen by the match officials… The categories of decision/incident which may be reviewed in the event of a potential ‘clear and obvious error’ or ‘serious missed incident’ are: … goal/no goal decisions’ (emphasis added);
VAR Protocol, para. 3: ‘The VAR is connected to the communication system being used by the match officials and can hear everything they say; the VAR can only speak to the referee by pushing a button (to avoid the referee being distracted by conversations in the [video operation room]’;
VAR Protocol, para. 4, Original Decision: ‘The referee and other match officials must always make an initial decision (including any disciplinary action) as if there was no VAR (except for a ‘missed’ incident)’ (emphasis added);
VAR Protocol, para. 4, Check: ‘The VAR automatically ‘checks’ the TV camera footage for every potential or actual goal… If the ‘check’ does not indicate a ‘clear and obvious error’ or ‘serious missed incident’, there is usually no need for the VAR to communicate with the referee… If the ‘check’ indicates a probable ‘clear and obvious error’ or ‘serious missed incident’, the VAR will communicate this information to the referee, who will then decide whether or not to initiate a ‘review’’ (emphasis added);
VAR Protocol, para. 4, Review: ‘The Referee can initiate a ‘review’ or a potential ‘clear and obvious error’ or ‘serious missed incident’ when: the VAR (or another match official) recommends a ‘review’… the referee suspects that something serious has been ‘missed’;
VAR Protocol, para. 4, Match Validity: ‘In principle, a match is not invalidated because of: malfunction(s) of the VAR technology (as for [GLT]… )… wrong decision(s) involving the VAR… decision(s) not to review an incident’;
Glossary, GLT: ‘Electronic system which immediately informs the referee when a goal has been scored i.e. the ball has wholly passed over the goal line in the goal’ (emphasis added); and
Practical Guidance for Match Officials: ‘When a goal has been scored but the ball appears still to be in play, the assistant referee must first raise the flag to attract the referee’s attention then continue with the normal goal procedure of running quickly 25–30 metres along the touchline towards the halfway line’.
GLT in compliance?
For this author the definition of GLT found in the LoG, Glossary signifies the IFAB’s and referees’ implicit trust in the accuracy of GLT when in use during a match. Further, Hawk-Eye’s GLT is ‘qualified for the licensing of goal-line technology to football associations across the world’, indicating that it complies fully with the licensing criteria set out in the FIFA Quality Programme for GLT Testing Manual and in accordance with LoG, Law 1, para. 11.
In respect of the circumstances of the incident during the match between AVFC and SUFC (“the match”), Hawk-Eye’s statement quoted above indicates that pursuant to the LoG, Law 1, para. 11, the GLT used during the match was ‘tested and proved functional prior to the start of the match… and confirmed as working by the match officials’. The tests to check the functionality of GLT to be completed before a match as recommended by FIFA are stated at pg. 44-46 of the FIFA Quality Programme for GLT Testing Manual, again as referred to in the LoG, Law 1, para. 11.
Further, Hawk-Eye’s statement quoted above indicates that the GLT in use during the match was not faulty at any point and ‘remained functional throughout’. Hawk-Eye’s explanation for the incident is simply that the ‘seven cameras located in the stands around the goal area were significantly occluded by the goalkeeper, defender, and goalpost’ for the GLT to not function. This author has not seen anything to contradict Hawk-Eye’s explanation for the incident during the match.
Considering the above, it is this author’s opinion that there is nothing to indicate that Hawk-Eye’s GLT in use during the match did not meet the standards required by the PL Rules and/or the LoG. The obstructed view (or the “occlusion”) of Hawk-Eye’s GLT during the match appears to be something that was not reasonably foreseeable or otherwise an accepted risk in the use of GLT.
As the ‘protocol issued by… the [PL] Board’ referred to in rule K.25 of the Rules (if one exists) and the ‘Goal Decision System (GDS) protocol’ referred to in Hawk-Eye’s statement are unobtainable, consideration cannot be given to the same. Nevertheless, it is difficult to imagine that any such protocol would differ from the FIFA Quality Programme for GLT Testing Manual and the LoG due to article 3(e) of the PL’s Memorandum of Association quoted above.
VAR in compliance?
Beyond considerations of GLT during the match, VAR could have been used by the referee, Michael Oliver, to check whether or not the ball had crossed the goal line during the incident.
A referee can seek assistance from VAR in the event of a ‘clear and obvious error’ or ‘serious missed incident’ in relation to a goal or no goal (see the LoG, Law 5, para. 4 and VAR Protocol, para. 1.1 and 2). Michael Oliver would have been entitled to seek assistance from VAR – either upon his own initiation or upon a recommendation from VAR or other officials – because there was an ‘initial decision’ to allow play to continue following the incident or otherwise because the incident amounts to a ‘missed incident’ (see the LoG, VAR Protocol, para. 1.2.4, para. 2, para. 4, Original Decision and para. 4, Review).
However, the VAR for the match, Paul Tierney, as noted above, explained that he did not make a recommendation of VAR’s assistance to Michael Oliver about the incident during the match because ‘of the on-field match officials not receiving a signal’ (which if applied generally means that VAR would never check a goal/no goal in circumstances of potentially faulty or blocked GLT). Further, this is compounded by referees’ implicit trust in the accuracy of GLT as noted above. It is in those circumstances that VAR’s assistance was not initiated by Michael Oliver or recommended by Paul Tierney, which while not agreeable to some is permissible.
Rule C.8 of the PL Rules and the LoG, Law 5, para. 2, which are repeated here for emphasis, support Michael Oliver’s decision of a no goal and/or the absence of a decision to initiate a review by VAR:
‘Goal Line Technology shall be utilised at League Matches (save that, for the avoidance of doubt, a League Match shall proceed even if Goal Line Technology is unavailable for part or all of it). The referee’s decision as to whether a goal has been scored shall be final’;
‘Decisions will be made to the best of the referee's ability according to the Laws of the Game and the ‘spirit of the game’ and will be based on the opinion of the referee, who has the discretion to take appropriate action within the framework of the Laws of the Game. The decisions of the referee regarding facts connected with play, including whether or not a goal is scored and the result of the match, are final. The decisions of the referee, and all other match officials, must always be respected’.
A claim by SUFC?
It is important to note that any claim being made by SUFC is only likely to occur in the event that the two points that SUFC missed out on due to drawing rather than winning the match causes SUFC to not finish in a higher league position and/or qualify for a UEFA club competition at the end of the PL’s 2019/2020 season.
If any claim is to be brought against the PL and/or Hawk-Eye it will be by way of an internal arbitration and appeal procedure provided by the PL or The FA rather than a court of law (see rule X2 of the PL Rules and/or rule K1 of The FA Rules). In either event the law of England and Wales will apply (see rule X.2.3 of the PL Rules and/or rule K14 of The FA Rules).[1]
A claim against the PL
SUFC may consider a claim against the PL in contract. Pursuant to rule B.15 of the PL Rules there is a contract between SUFC and the PL imposing a duty upon each to, inter alia, be bound by and comply with the PL Rules, the LoG, The FA Rules and the statutes and regulations of FIFA. It should be noted that there is no contractual term as to the standard required to qualify as compliance and it would be difficult to argue that a term is implied to provide for the same.[2] Nevertheless, in consideration of the facts, rules and laws explained above, there is nothing from the incident during the match to indicate that the PL acted in breach of rule B.15 of the PL Rules. For example, in respect of the use of GLT and/or VAR during the match in particular, protocols were applied, the PL used PGMOL referees and the GLT was provided by a FIFA-licensed provider.
SUFC may consider alternatively a claim against the PL in negligence. SUFC may seek to establish that the PL has a duty of care to SUFC to ensure that GLT and VAR work and is used appropriately during all PL matches to properly decide on goal/no goal situations in accordance with the PL Rules and the LoG.[3]
To determine whether there is any such duty of care owed by the PL to SUFC in this novel situation, SUFC would have to prove that (i) the damage which occurs is foreseeable; (ii) there is a sufficiently proximate relationship between the parties; and (iii) it is fair, just and reasonable in all the circumstances to impose a duty of care.[4]
Although in respect of a personal injury claim and applying the “assumption of responsibility” test,[5] the Court of Appeal considered it just and reasonable to impose a duty of care on the British Boxing Board of Control Ltd (“BBBC”) owed to professional boxers in Watson v BBBC.[6] The BBBC had assumed responsibility for the requirements of immediate medical care to restrict the foreseeable injuries to boxers by imposing rules to safeguard boxers and thus had produced a relationship of close proximity between itself and professional boxers. Furthermore, it had been within the reasonable contemplation of BBBC that the claimant would rely on BBBC’s skill and expertise, as the Claimant belonged to a defined class of persons.
In this author’s opinion the PL does not have a duty of care to SUFC to ensure that GLT and VAR works and is used appropriately during all PL matches to properly decide on goal/no goal situations because:
A PL club’s loss of revenue from not finishing in a higher league position due to losing league points as a result of GLT and/or VAR not working or being used appropriately during a match contrary to the PL Rules and the LoG is reasonably foreseeable;
There is a sufficiently proximate relationship between SUFC and the PL. The PL is responsible for the organisation of the league competition, there is a contractual relationship between the parties pursuant to rule B15 of the PL Rules, and the PL Rules make provision for SUFC’s membership of and participation in the PL; but
It is not fair, just and reasonable in all the circumstances to impose the above-stated duty of care on the PL. SUFC and each other PL club are the shareholders of the PL. The PL’s shareholders are responsible for making and adopting and from time to time amending the PL Rules (see article 16.1 of the PL’s Articles of Association). It is not fair, just and reasonable to impose a duty of care on the PL owed to its shareholders who are themselves responsible for the making and adopting of the PL Rules that provide for the use and method of use of GLT and/or VAR. The imposition of such a duty would also be contrary to Rule C8 of the PL Rules.[7] Further, this opinion is compounded by the possibility of an alternative claim in negligence by SUFC against Hawk-Eye.
Even if a duty of care can be established, it is difficult to see how the PL breached any such duty for failing to exercise reasonable care. As noted above, in respect of the use of GLT and/or VAR during the match in particular, protocols were applied, the PL used PGMOL referees who have acted in accordance with the LoG, and the GLT was provided by a FIFA-licensed provider.
Considering the above, it is this author’s opinion that SUFC would face difficulty in establishing a claim against the PL in contract and/or negligence.
A claim against Hawk-Eye
It is assumed that there is a contract between the PL and Hawk-Eye for the use of Hawk-Eye’s GLT during PL matches. The common law doctrine of privity of contract means that a contract does not generally impose an obligation on one of the contracting parties towards anyone other than the counterparty to the contract. In the absence of seeing the terms of any such contract between PL and Hawk-Eye it is not possible to consider whether (i) there is any express term that gives a third party (e.g. SUFC) the right to enforce a term of the contract between PL and Hawk-Eye; or (ii) there is any express term that purports to confer a benefit on a third party (e.g. SUFC) to allow that third party to enforce the same in the absence of any contrary intention in the contract (see Contracts (Rights of Third Parties) Act 1999, s.1(1)-(2)).
SUFC may consider alternatively a claim against Hawk-Eye in negligence. SUFC may seek to establish that Hawk-Eye had a duty of care to SUFC to ensure that Hawk-Eye’s GLT worked throughout the match to decide on goal/no goal situations.[8] To determine whether there is any such duty of care owed by Hawk-Eye to SUFC, then again the above-stated three-stage test would have to be considered.
In this author’s opinion, Hawk-Eye does have a duty of care to SUFC to ensure that Hawk-Eye’s GLT worked throughout the match to decide on goal/no goal situations because:
A PL club’s loss of revenue from not finishing in a higher league position due to losing league points as a result of GLT not working during a match is reasonably foreseeable;
There is a sufficiently proximate relationship between SUFC. SUFC as a shareholder of the PL have agreed to the use of GLT during PL matches, and Hawk-Eye know that their GLT meets FIFA requirements and will be relied upon by PL clubs to accurately decide on goal/no goal decisions and therefore affect the outcomes of matches; and
It is fair, just and reasonable in all the circumstances to impose the above-stated duty of care on Hawk-Eye. SUFC are unlikely to have a cause of action against any other party, and, in reality, the type of liability is limited in scope.
Notwithstanding that duty of care, it is this author’s opinion that a claim by SUFC against Hawk-Eye in negligence would fail as SUFC would be unable to prove that Hawk-Eye failed to act with reasonable care in respect of that duty:
Hawk-Eye GLT’s is a FIFA-licensed product and therefore meets the industry standard;
Protocols and tests were applied to confirm that Hawk-Eye’s GLT was working before the match;
At no point during the match did Hawk-Eye’s GLT become inherently dysfunctional;
Hawk-Eye’s GLT became dysfunctional due to the extrinsic presence of participants of the match, which must be an accepted hazard of the use of GLT if the GLT otherwise meets the industry standard;
No similar event has happened in over 9,000 uses of Hawk-Eye’s GLT in football matches; and
The PL Rules and LoG expressly or implicitly indicate that there is a likelihood that GLT may be unavailable for all or part of a match (see rule C8 of the PL Rules and the LoG, Law 5, para. 2).[9]
Considering the above, it is this author’s opinion that SUFC would also face difficulty in establishing a claim against Hawk-Eye in contract and/or negligence, albeit that the full circumstances in respect of any contractual claim is unknown.
A claim by other PL clubs?
The same analysis set out above applies to claims that may be made by other clubs in the event that the one point AVFC gained from the match causes other PL clubs to finish in a lower league position and/or be relegated from the PL at the end of the PL’s 2019/2020 season.
They think it’s all over…
Well, it is now.
Footnotes
[1] See also Mercato Sports (UK) Limited v The Everton Football Club Company Limited [2018] EWHC 1567 (Ch).
[2] Marks & Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72.
[3] Charlesworth & Percy on Negligence, 14th Edn (Sweet & Maxwell 2019), Vol. 1, paragraphs 2-98 – 2.99.
[4] Customs and Excise Commissioners v Barclays Bank Plc [2007] 1 AC 181 (HL) (Lord Rodger), [4], [19] and [53].
[5] Ibid, (Lord Rodger), [5].
[6] [2001] QB 1134 (CA).
[7] The PL Rules, rule B.15.5; FIFA Statutes, article 59; and CAS 2004/A/704 Yang Tae Young & KOC v FIG, [17].
[8] Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; White v Jones [1995] (HL); P&P Property Ltd v Owen White & Catlin LLP [2018] EWCA Civ 1082 (CA).
[9] Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 (CA) (Greer LJ), 224.
26 June 2020
On 29 July 2020 Thomas Horton discussed the points raised in this article with Sky Sports News. That discussion can be listened to and read by clicking this link.