EU Member States' Courts Versus U.S. Punitive Damages Awards for Physical Harm in Football: An Attempt at Defining Best Practice
| Author | Cedric Vanleenhove - Jan De Bruyne |
| Position | Dr. Cedric Vanleenhove (Master in Law Ghent University, LL.M Cambridge) is currently Lecturer-In-Charge of an introductory course in the Bachelor of Laws Program as well as Post-Doctoral Researcher in the field of transnational law at Ghent University Law School. He was a Visiting Fellow at the Institute of European and Comparative Law of ... |
| Pages | 1-24 |
Dundee Student Law Review, Vol III, No 1
EU Member States’ Courts Versus U.S. Punitive
Damages Awards for Physical Harm in
Football: An Attempt at Defining Best Practice.
Cedric Vanleenhove* & Jan De Bruyne**
INTRODUCTION
Shocking or career-threatening tackles have been observed in various football
competitions around the world. Every football league has its examples of
crushing tackles which have left the victim with long-term suffering.1 The
Major League Soccer in the United States (U.S.) is no exception.2 When the
victim of such an incident decides to file a law suit to recover damages from
* Dr. Cedric Vanleenhove (Master in Law Ghent University, LL.M Cambridge) is currently
Lecturer-In-Charge of an introductory course in the Bachelor of Laws Program as well as Post-
Doctoral Researcher in the field of transnational law at Ghent University Law School. He was
a Visiting Fellow at the Institute of European and Comparative Law of Oxford University in
2013 and a Visiting Researcher at Har vard Law Sc hool in 2014. His Ph.D. thesis dealt with
the private international law treatment of U.S. punitive damages in the European Union.
** Jan De Bruyne (Master in Law, Ghent University & Master EU Studies, Ghent University)
is Academic Assistant in the field of comparative and private law at the Ghent University Law
School. He has been a Visiting Fellow at the Institute of European and Comparative Law of
Oxford University in 2014 and at the Center for European Legal Studies of the University of
Cambridge in 2015.
1 For instance, Alf-Inge Håla nd’s career ended due to the deliberate knee -high tackle by Roy
Keane during the Manchester Derby in 20 01. Another example is Axel Witsel’s leg-breaking
horror tackle that put Anderlecht player Marcin Wasilewski out for almost an entire year.
2 Remember Hristo Stoichkov’s leg -shattering tackle in 2003 during a game between D.C.
United and American University. The tackle caused severe physical and psychological injuries
to his opponent Freddy Llerena-Aspiazu. He filed a lawsuit in the U.S. District Court claiming
damages from the former Bulgarian international whose tackle caused the injury.
the wrongdoer, punitive damages might become available.3 The availability of
punitive damages for football injuries in the United States raises the question
whether awards for such damages can also be enforced in the European Union
(EU). The vast majority of EU Member States traditionally adopts a hostile
stance towards this controversial remedy. However, more recently a small
number of countries have exhibited a more welcoming attitude. The article
supports this new-found openness and attempts to solidify it by formulating a
number of guiding principles that European judges can fall back on when
confronted with American judgments containing punitive damages for liability
for football injuries. Such a study might be particularly relevant considering
the rising popularity of football in the U.S. and the transfers to major European
football leagues going along with it.4
PUNITIVE DAMAGES AND SPORT INJURIES IN THE UNITED
STATES
Although not the main focus of this contribution, it is interesting to briefly
recall the circumstances under which punitive damages become available in
the U.S. following a crushing or career-ending tackle in football.5
Contrary to compensatory or actual damages, punitive damages are not
(primarily) intended to compensate the plaintiff for harm done. Punitive
3 For instance, Llerena-Aspiazu alleged that Stoitchkov’s tackle was the direct and the
proximate result of the d efendant’s recklessness. Llerena-Aspiazu further argued that
Stoichkov's tackle constituted outrageous conduct that was malicious, wanton, reckless or in
willful disregard of rights. Therefore, Llerena-Aspiazu sought $5 million in punitive damages
from Stoichkov (Llerena-Aspiazu v. Anschutz D.C. Soccer L.L.C., et al., Case 1:06-cv-00343-
RWR, Complaint (U.D.D. 2006)). Although a financial settlement was eventually reached
between Llerena-Aspiazu and Stoichkov (Llerena -Aspiazu v. Anschutz D.C. Soccer L.L.C., et
al., Case 1 :06-cv-00343-RWR, Notice of Settlement (U.D.D. 2006)), the case illustrates that
it is conceivable that punitive damages can be awarded if the court accepts that the tortfeasor
deliberately tried to injure the plaintiff or acted willfully or grossly negligent with a conscious
disregard for the safety of others.
4 There are, for instance, a number of examples of famous players who have made the move
from the U.S. football competition to the English Premier League. In 1999 Colorado Rapids
sold Marcus Stephen Hahnemann to Fulham. Goalkeeper Tim Howard left Metrostars for
Manchester United in 2003. Fulham bought Clint Dempsey from New England Revolution in
2007. Brad Guzan transferred from Chivas USA to Aston Villa in 2008. Finally, DeAndre
Yedlin very recently swapped Seattle Sounders FC for Tottenham Hotspur.
5 See for an extensive discussion: Cedric Vanleenhove & Jan De Bruyne, ‘Liability for
Football Injuries and Enforcement in the EU – Will US Punitive Damages be Shown the Red
Card in Europe?’ (2014) 14 Va. Sports & Ent. L.J. 50.
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