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He shoots…he might have scored? Football and loss of chance damages.

Author
Butland Russell
Russell Butland

Counsel

London

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09 November 2016

The Court of Appeal has held that a football agent could recover damages on a loss of chance basis from a rival agent and a football club, for inducing a player to breach an oral agency contract.

Loss of chance damages are available where a claimant’s loss depends, not on what it would have done, but on the hypothetical acts of a third party. To establish causation the claimant need only prove that there was a real or substantial (rather than speculative) chance of the third party acting so as to confer the benefit claimed. In contrast to the usual position - where the claimant must prove causation on the balance of probabilities - causation can be established on a loss of chance basis where the probability of the benefit arising is less than 50%. However the corollary is that the claimant’s loss is quantified as only the percentage chance of the benefit claimed, whereas on the usual approach if causation is proved the claimant can recover the entirety of the benefit.

In McGill v The Sports & Entertainment Media Group Mr McGill entered into an oral contract with the Aston Villa midfielder Gavin McCann to act as his exclusive agent, and arranged a deal for his transfer to Bolton Wanderers. However before the deal was signed, a rival agent took over McCann’s representation and finalised the transfer, earning a significant commission. The High Court found that Bolton and the rival agent had induced McCann to breach the oral contract, but as McGill had not proved on the balance of probabilities that McCann would subsequently have signed a written agency contract (a requirement of the Football Association’s regulations), he could not recover the lost commission claimed.

The Court of Appeal accepted that the High Court had missed the target with the latter finding, holding that McGill’s loss should be assessed on the loss of chance basis, as his entitlement to commission was dependant on the hypothetical actions of McCann, namely would he have signed an FA Regulation compliant written contract when the transfer was finalised. The Court of Appeal accepted that McGill could show a real or substantial chance of McCann signing such a contract, and thus McGill was thus not barred from recovering damages by the High Court’s balance of probabilities finding. McGill could recover a percentage of the lost commission, but one that could not exceed 50% in light of the High Court’s finding.

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