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canarydan23

Bournemouth Legal Action

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There's a lot of talk of this on the wonderful world of social media but I genuinely think they would have a case.

In tort law, a negligent act that causes a direct financial loss is recoverable against the tortfeasor (negligent party).

People are talking about suing Hawkeye, but I don't think that would wash. If they could prove it was an unavoidable and unforeseeable issue with the technology then a claimant would be hard-pressed to prove that an individual was negligent in the technology not working at the time it should. As long as the appropriate tests and checks were carried out and the technology was kept in a good state of repair, it was just bad luck that it failed at that time.

However, surely VAR had both the technology, ability and scope within the rules to take action and award the goal. If that's true (the technology and ability bit is certainly true, I don't know enough about the rules to state whether they were allowed to intervene in that decision but I strongly suspect they could have) then there is an exceptionally strong argument that in failing to award Sheffield United's goal the match officials performed a negligent act.

The financial loss part is easy to evidence and huge.

The most difficult barrier would be to prove the "direct" part. For a claimant to succeed, it would need to be shown on the balance of probabilities that the negligent act DIRECTLY caused the financial loss which could be tricky given the time between the act and the loss and the myriad other factors that relegate a side.

Still, it's not beyond the realms of probability that a judge could rule in Bournemouth's favour on the final part and that could open up a whole can of worms. The negligent party would be Michael Oliver who would undoubtedly be indemnified by the PGMOL. Would they have insurance against this sort of thing? Doubtful, and the PGMOL won't have anything like the sort of money to pay out an award that would be substantial. Maybe the PL would stump up some hush money to Bournemouth to prevent it going that far? Could be interesting viewing IF Bournemouth felt it worth going down this route.

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I just don't see it. It's effectively legal action based on an incorrect refereeing decision, of which there are surely dozens of examples throughout the seasons.

Is there not something in the PL/FA rules whereby a team is bound by the decisions made even if incorrect?

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How does anybody know that Hawkeye gets it right 100% of the time in tennis?

Everybody just accepts it's always right but how can anybody check that?

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Posted (edited)

Why has no club ever successfully (as far as I’m aware) sued as a result of a ‘negligent’ act of a bad refereeing decision?

As you say the remoteness is the issue. How do you prove that one goal line decision caused relegation? The prem could point to every single chance they’ve missed all season - score that and get an extra point that keeps you up. Goalie makes a howler which costs you a point - sue your keeper instead of us? For all we know, the goal “over the line” might have counted and then they could have gone and conceded two minutes later anyway.

 

Edit: also I struggle to see how Michael Oliver is negligent. He relies on the technology, the goal line technology doesn’t beep to say “goal”, he doesn’t give it. Where’s the negligence? 

Edited by Aggy

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4 minutes ago, Ian said:

I just don't see it. It's effectively legal action based on an incorrect refereeing decision, of which there are surely dozens of examples throughout the seasons.

Is there not something in the PL/FA rules whereby a team is bound by the decisions made even if incorrect?

I did wonder that, but there cannot be anything in PL/FA rules that are more authoritative than the courts.

You'd never be able to prove negligence on behalf of an incorrect refereeing decision nor could you on decisions made that have even the slightest whiff of subjectivity. But in this instance, it's as objective as they come. The ball was categorically over the line and the technology was available that proved that. It wasn't a subjective matter, the technology was available to make a near instant decision and therefore failing to intervene, assuming they had the power to do so which I'm sure they did, was not incompetent, was not an understandable error of judgement, but clear, gross negligence.

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Just now, Making Plans said:

How does anybody know that Hawkeye gets it right 100% of the time in tennis?

Everybody just accepts it's always right but how can anybody check that?

I have no doubt there will be a margin of error, particularly in sports like cricket and tennis where it's actually predicting things like spin and bounce.

The difference is that cricket and tennis legislate for this with "Umpire's Call" and the challenge system, whereby the EPL is apparently run by absolute idiots who don't understand technology.

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1 minute ago, Aggy said:

Why has no club ever successfully (as far as I’m aware) sued as a result of a ‘negligent’ act of a bad refereeing decision?

As you say the remoteness is the issue. How do you prove that one goal line decision caused relegation? The prem could point to every single chance they’ve missed all season - score that and get an extra point that keeps you up. Goalie makes a howler which costs you a point - sue your keeper instead of us? For all we know, the goal “over the line” might have counted and then they could have gone and conceded two minutes later anyway.

Yeah, this is where I think it could, potentially would, fall down. If there is a break or a leap in the chain of causation then a litigation cannot be successful. But it's far from clear cut, and these sorts of things often don't make it past the mediation stage. If there is a slight chance of success, the FA/PL/PGMOL will be desperate to avoid it going to court. And that might prompt them to get out the chequebook.

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Just now, canarydan23 said:

Yeah, this is where I think it could, potentially would, fall down. If there is a break or a leap in the chain of causation then a litigation cannot be successful. But it's far from clear cut, and these sorts of things often don't make it past the mediation stage. If there is a slight chance of success, the FA/PL/PGMOL will be desperate to avoid it going to court. And that might prompt them to get out the chequebook.

If it was going to happen, it would have done before. Loads of teams could point to one extremely bad decision throughout the course of a season that cost them a point or three that would have kept them up.

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Obviously they won't win a legal case but it does bring something into focus.

We were told by managers, owners and pundits that the game is too important for a team to be relegated by a mistake that technology would have picked up and reversed. And of course never mind relegation, it was pointed out the cost to a club in lost TV money.

Well I have news for all these know it alls. It happened this season. Bournemuth are down and just maybe Sheffield United missed out on Europe because your precious technology failed, twice in the same game.

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1 minute ago, Aggy said:

If it was going to happen, it would have done before. Loads of teams could point to one extremely bad decision throughout the course of a season that cost them a point or three that would have kept them up.

We've not had VAR or the technology to amend said decision before. Therefore the subjectivity and split-second decision excuse no long exists. So no, it would not have happened before now. There has never been a previous incident where a genuine case of the legal definition of negligence could possibly be met. This scenario is certainly unique in the context of English football, I wouldn't know if something similar has happened elsewhere.

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Just now, keelansgrandad said:

Obviously they won't win a legal case but it does bring something into focus.

We were told by managers, owners and pundits that the game is too important for a team to be relegated by a mistake that technology would have picked up and reversed. And of course never mind relegation, it was pointed out the cost to a club in lost TV money.

Well I have news for all these know it alls. It happened this season. Bournemuth are down and just maybe Sheffield United missed out on Europe because your precious technology failed, twice in the same game.

There’s the issue.

VAR in theory should work well - the goal line decision for instance, you look at the screen see it’s over the line and clearly a mistake so you change the decision. To make it work it needs to back track a bit - get away from the mm offside calls and go back to “clear and obvious mistake”. We don’t need every decision to be analysed to death. We don’t even need 50/50 or even 60/40 decisions being overturned - that’s part of the game. We need the clearly wrong, massive injustice if that stands decisions to be corrected.

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Just now, canarydan23 said:

We've not had VAR or the technology to amend said decision before. Therefore the subjectivity and split-second decision excuse no long exists. So no, it would not have happened before now. There has never been a previous incident where a genuine case of the legal definition of negligence could possibly be met. This scenario is certainly unique in the context of English football, I wouldn't know if something similar has happened elsewhere.

Disagree. Why couldn’t a ref have been negligent before if they can now? 

In the Michael Oliver decision goalline decision, the issue lies with the goalline technology failing. Try and sue the developer of the technology - but what duty of care do they owe to the clubs? Try and sue the prem/refs (where there might be an argument there is a duty of care) but where’s the causation - they rely on the technology which failed them.

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28 minutes ago, canarydan23 said:

There's a lot of talk of this on the wonderful world of social media but I genuinely think they would have a case.

In tort law, a negligent act that causes a direct financial loss is recoverable against the tortfeasor (negligent party).

People are talking about suing Hawkeye, but I don't think that would wash. If they could prove it was an unavoidable and unforeseeable issue with the technology then a claimant would be hard-pressed to prove that an individual was negligent in the technology not working at the time it should. As long as the appropriate tests and checks were carried out and the technology was kept in a good state of repair, it was just bad luck that it failed at that time.

However, surely VAR had both the technology, ability and scope within the rules to take action and award the goal. If that's true (the technology and ability bit is certainly true, I don't know enough about the rules to state whether they were allowed to intervene in that decision but I strongly suspect they could have) then there is an exceptionally strong argument that in failing to award Sheffield United's goal the match officials performed a negligent act.

The financial loss part is easy to evidence and huge.

The most difficult barrier would be to prove the "direct" part. For a claimant to succeed, it would need to be shown on the balance of probabilities that the negligent act DIRECTLY caused the financial loss which could be tricky given the time between the act and the loss and the myriad other factors that relegate a side.

Still, it's not beyond the realms of probability that a judge could rule in Bournemouth's favour on the final part and that could open up a whole can of worms. The negligent party would be Michael Oliver who would undoubtedly be indemnified by the PGMOL. Would they have insurance against this sort of thing? Doubtful, and the PGMOL won't have anything like the sort of money to pay out an award that would be substantial. Maybe the PL would stump up some hush money to Bournemouth to prevent it going that far? Could be interesting viewing IF Bournemouth felt it worth going down this route.

I have thought this might be coming. It’s been so abject this season and changed along the way to has massively impacted the fair nature of competition. They have my full support and Norwich City should support the legal case as well.

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Posted (edited)
5 minutes ago, canarydan23 said:

We've not had VAR or the technology to amend said decision before. Therefore the subjectivity and split-second decision excuse no long exists. So no, it would not have happened before now. There has never been a previous incident where a genuine case of the legal definition of negligence could possibly be met. This scenario is certainly unique in the context of English football, I wouldn't know if something similar has happened elsewhere.

My understanding was that the reason our VAR implementation was so delayed is that other leagues' implementations would be used to determine what worked well and what didn't.

I think the implementation this season has been nothing short of a disaster, and absolutely incompetent. I don't believe that it's a case of "first-season syndrome", because it is so absolutely flawed that these are not simply teething errors but should probably amount to misconduct (particularly when IFAB themselves say it is being used against their guidance).

Don't get me wrong, I would like nothing more than to see someone sue over it, and watch the fireworks in the courts, but I just don't see it happening because it seems almost impossible to prove that a single decision can be directly responsible for a team's relegation.

Edited by Ian

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I don't think they have genuine grounds in a sporting context. Personally however I would be doing everything possible to get an answer from the people in charge.

No one in blue was appealing for Hernandez to be called offside yesterday, but VAR took a look anyway and found him to be off. But in the Villa-United context they decided they weren't even going to look at it for no reason whatsoever? Despite some big protests from players and staff?

It stinks, if you ask me. 

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1 minute ago, Aggy said:

Disagree. Why couldn’t a ref have been negligent before if they can now? 

In the Michael Oliver decision goalline decision, the issue lies with the goalline technology failing. Try and sue the developer of the technology - but what duty of care do they owe to the clubs? Try and sue the prem/refs (where there might be an argument there is a duty of care) but where’s the causation - they rely on the technology which failed them.

I've already answered that question but I'll try again. If Murray Walker sees Gerhard Berger's Ferrari crash into a wall and on first glance announces, "Jean Alesi has crashed!", that's clumsy, incompetent, but not negligent. If he watches a slow-motion replay back, clearly showing Gerhard Berger's helmet and Gerhard Berger's unique number on the car and still says, "Jean Alesi is out of the race", that becomes negligent.

One aspect of technology failed then, but you've seen the stills that were available to the VAR officials. That's the equivalent of still maintaining Jean Alesi crashed when you can quite clearly see Gerhard Berger's helmet and number on the car. Negligent.

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While this would be a civil case I would be guided by criminal law in regard to advice, as

They may be the actus reus  -  the guilty act

but I cannot see there being any hope of proving mens rea - the guilty mind

so along with everyone else on here, my thought is that it is a non starter.... never mind winning any case

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I doubt if they’d win a case now, but it was a particularly horrendous decision - as clear a goal as you’ll see without any need for technology.  That it had such far-reaching consequences is unfortunate and shows that something needs looking at.

Villa could easily point out that the entire game would need to be replayed as had they gone a goal down their tactics could have been different, eg settling for a point rather than chasing the game for an equaliser.  It’s the same argument that just doesn’t wash if you get a blatant pen turned down at 0-0 and lose 2-0, people say ‘it didn’t make any difference’ whereas the opposite is true, the whole complexion of the game would be different.

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Posted (edited)
15 minutes ago, canarydan23 said:

I've already answered that question but I'll try again. If Murray Walker sees Gerhard Berger's Ferrari crash into a wall and on first glance announces, "Jean Alesi has crashed!", that's clumsy, incompetent, but not negligent. If he watches a slow-motion replay back, clearly showing Gerhard Berger's helmet and Gerhard Berger's unique number on the car and still says, "Jean Alesi is out of the race", that becomes negligent.

One aspect of technology failed then, but you've seen the stills that were available to the VAR officials. That's the equivalent of still maintaining Jean Alesi crashed when you can quite clearly see Gerhard Berger's helmet and number on the car. Negligent.

But when a linesman misses a clear and obvious offside because they are unfit and twenty yards off the pace how is that not negligent using your logic?

Edited by Aggy

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Posted (edited)
7 minutes ago, Aggy said:

But when a linesman misses a clear and obvious offside because they are unfit and twenty yards off the pace how is that not negligent using your logic?

Or Poll’s three yellows? Or I’ve just watched a “ghost goal” given by Atwell Reading vs Watford, or Henry’s handball ...

 

The fact that there was no technology available doesn’t mean someone could not be negligent. So any potential claim from teams in the past (and I imagine plenty will have taken legal advice on the point) hasn’t failed because it’s impossible to prove negligence unless there’s technology available for the refs to check. 

Edited by Aggy

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3 minutes ago, Aggy said:

But when a linesman misses a clear and obvious offside because they are unfit and twenty yards off the pace how is that not negligent using your logic?

Erm...what?

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Just now, canarydan23 said:

Erm...what?

I asked why a ref couldnt have been negligent in the past and you said because they didn’t have technology. 

But why is linesman being unfit and off the pace and therefore missing a clear offside (which happened a lot over the last few decades) not negligent just because they couldn’t double check it on a screen?

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Just now, Aggy said:

I asked why a ref couldnt have been negligent in the past and you said because they didn’t have technology. 

But why is linesman being unfit and off the pace and therefore missing a clear offside (which happened a lot over the last few decades) not negligent just because they couldn’t double check it on a screen?

You need to learn the difference between negligence and incompetence in the context of legal action.

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Just now, canarydan23 said:

You need to learn the difference between negligence and incompetence in the context of legal action.

So explain why the linesman isn’t negligent in that circumstance then?

 

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1 minute ago, Aggy said:

So explain why the linesman isn’t negligent in that circumstance then?

 

Because he was being incompetent, not negligent. He wasn't competent enough to do the job. You can go back through the chain of causation and say that the person who selected him for the job was negligent in that decision his employer was negligent in their decision to employ them, or even that the linesman was negligent in not keeping himself in a fit enough state to do his job effectively, but that wouldn't matter legally with regards to the specific act of allowing an offside goal, as it needs to be a DIRECT, negligent cause.

Likewise, Graham Poll was incompetent in dishing out three yellow cards to the same player, Stuart Attwell was incompetent in not awarding a goal. It's not incompetent to look at a still image of a ball clearly, objectively over the line and still not give a goal. That's negligence.

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It's not incompetent to look at a still image of a ball clearly, objectively over the line and still not give a goal. That's negligence.

that would be determined by his terms of reference

it would have to be proved that he chose not to act as you claim he should, when he was able to

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1 hour ago, canarydan23 said:

There's a lot of talk of this on the wonderful world of social media .....

I think you can give up on this debate there......

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9 minutes ago, Bill said:

It's not incompetent to look at a still image of a ball clearly, objectively over the line and still not give a goal. That's negligence.

that would be determined by his terms of reference

it would have to be proved that he chose not to act as you claim he should, when he was able to

Yes. And you do that by asking the question, "Did you choose not to award a goal?"

If the rules prevented him from intervening then he has a way of answering that question without proving negligence and if that's the case, that something prevents VAR stepping in for goal-line decisions where Hawkeye has failed, then whoever was the VAR match official has a get out. If he had the power to award the goal using the technology available to him, then of course he chose not to.

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Posted (edited)
1 hour ago, canarydan23 said:

There's a lot of talk of this on the wonderful world of social media but I genuinely think they would have a case.

In tort law, a negligent act that causes a direct financial loss is recoverable against the tortfeasor (negligent party).

People are talking about suing Hawkeye, but I don't think that would wash. If they could prove it was an unavoidable and unforeseeable issue with the technology then a claimant would be hard-pressed to prove that an individual was negligent in the technology not working at the time it should. As long as the appropriate tests and checks were carried out and the technology was kept in a good state of repair, it was just bad luck that it failed at that time.

However, surely VAR had both the technology, ability and scope within the rules to take action and award the goal. If that's true (the technology and ability bit is certainly true, I don't know enough about the rules to state whether they were allowed to intervene in that decision but I strongly suspect they could have) then there is an exceptionally strong argument that in failing to award Sheffield United's goal the match officials performed a negligent act.

The financial loss part is easy to evidence and huge.

The most difficult barrier would be to prove the "direct" part. For a claimant to succeed, it would need to be shown on the balance of probabilities that the negligent act DIRECTLY caused the financial loss which could be tricky given the time between the act and the loss and the myriad other factors that relegate a side.

Still, it's not beyond the realms of probability that a judge could rule in Bournemouth's favour on the final part and that could open up a whole can of worms. The negligent party would be Michael Oliver who would undoubtedly be indemnified by the PGMOL. Would they have insurance against this sort of thing? Doubtful, and the PGMOL won't have anything like the sort of money to pay out an award that would be substantial. Maybe the PL would stump up some hush money to Bournemouth to prevent it going that far? Could be interesting viewing IF Bournemouth felt it worth going down this route.

Re suing Oliver or PGOML I suspect the issue is not negligence but contractual. When you get promoted you sign up to sky’s , sorry the Premier Leagues , contract which almost certainly will say our / the refs decision is final. The use of VAR and the protocols surrounding it will be included. Refeering decisions will contractually be accepted before they ever occur . I doubt that Bournemouth could successfully sue the ref 
 

Professional negligence against Hawkeye is however an interesting one. A claim against Hawkeye for not doing what it was meant to do is presumably possible but again there will be a level of acceptance implied . Does Hawkeye claim to be 100% accurate? Is this the basis of their employment by the EPL ? Unlikely I would say - there are bound to be caveats 

 

This is the premier league wording of VAR referral . Noticeable that it does not say ball over the line is referred but that all goals will be checked but is precise about what it checks . 

All goals scored in the Premier League will automatically be checked by the Video Assistant Referee (VAR).

They will check for any infringements by the attacking team in the attacking possession phasethat led to the goal.

For factual decisions such as offside or the ball being out of play, the VAR will inform the referee, who will overturn any award of a goal.

For subjective decisions such as a foul or a handball, VAR can be used to overturn if a “clear and obvious error” has been identified.

The referee will explain his decision to the VAR and what he has seen.

If the evidence provided by the broadcast footage does not accord with what the referee believes he has seen, then the VAR can recommend an overturn.

The final decision will remain with the on-field referee.

Edited by Graham Paddons Beard

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