The civil liability of a football player that wounds an opponent at a critical moment of the game
| Autor | Gustavo Albano Abreu |
| Cargo | Profesor de Derecho del Deporte, Universidad Austral, Argentina |
| Páginas | 41-59 |
THE CIVIL LIABILITY OF A FOOTBALL PLAYER THAT WOUNDS AN
OPPONENT AT A CRITICAL MOMENT OF THE GAME
Gustavo Albano Abreu1
Submetido(submitted): 14 de setembro de 2016
Aceito(accepted): 15 de outubro de 2016
SUMMARY: I - Introduction. II - Historical evolution of the civil liability as regards
wounds between sportsmen. III - The most known decisions in Argentine Jurisprudence
in the matter of wounds between sportsmen at a critical moment of the game. Cases
“Cottroneo vs Banfield”; “Berman vs Goldin”; “Telechea vs Beldrio”; “Gil Osvaldo vs
Sociedad de Fomento”; and “Pizzo vs Camoronesi”. IV - The State authorization in
football. V - The assumption of risks in football. VI - By way of conclusion.
INTRODUCTION
When a sportsman suffers an injury in the course of a sportive competition, there
arises the issue of whether or not he is entitled to an indemnification and, if that is the
case, who is in charge of the obligation. As a general principle, the natural
characteristics of sport have determined that the eventual subjective liability of the
participants cannot be judged with the same criterion with which the general liability is
appraised (art 1109 Argentine Civil Code)2 where, according to some authors, there is
no “illicit action on part of the player that proceeded in a way that could commit his
responsibility out of a game”3.
The jurisprudence in the matter of grave injuries produced among sportsmen in
the middle of the game, is scarce. This may be due to the fact that, since ancient times,
1 Profesor de Derecho del Deporte, Universidad Austral, Argentina.
2 Trigo Represas and López Meza wonder whether there is a “sportive liability” and
conclude that there are not essential liabilities but different ways of breaching the duty of care
requirable of a person and that configurates liability. There is neither a sportive liability or a
medical liability but some peculiarities of liable acting within the frame of a sport which should
be taken in consideration at the moment of evaluating the diligence that the injurer owed. Cfr
Tratado de la responsabilidad Civil L.L.TII pp. 800/801. Mosset Iturraspe, in a similar sense,
sustains that the sportive liability undeniably has its peculiarities that cannot be set aside when
appraising the sport activity: the aims of sport in general and of the kind of sport at issue in
particular, the administrative authorization, the sports rules, the usages and customs regarding
its practice, etc. To conclude, determining the existence or inexistence of liability in the
intervening person but pointing out that in the subject of sportive liability there is no annulment
of the general rules of appraisal of liability. Cfr Responsabilidad por daños, Editorial. Rubinzal
Culzoni S.C.C., 6/11/1980 Sta. Fe T II B p 93.
3 Cfr Bustamante Alsina “Teoría General de la Responsabilidad Civil” Abeledo Perrot
Octava Edición ampliada y actualizada, Bs As 1993, p. 537.
the general principle has been criminal impunity and civil irresponsibility of the injurer,
provided he had acted within the rules of a sport authorized by the State4.
It should be pointed out that the jurisprudence in the matter of grave injuries
produced among sportsmen during the game is scarce. This may be due to the fact that
since Ancient Times, the general principle has been that as long as the injurer sportsman
acted within the rules of a sport authorized by the state, he would be entitled to criminal
impunity and he would not be civilly liable.
According to the authors that postulate5 the above the State authorization as a
justification cause comes from ancient times, more precisely from Greece or the Hellas
that consisted of city- states called polis, each one with its own legislation and
sovereignity but where the panhellenic competitions were regularly organized among
the citizens of different cities.
In the inception of organized sport in contrast to nowadays, there was neither a
centralized state that could eventually give an administrative authorization to sports, nor
rules of the game as they are currently conceived6. However, as the authorities of the
4 According to Orgaz, the state authorization means the existence of a special regime,
different from the ordinary one. In contrast to the latter that presumes that every injury caused to
another person is illicit (art 1109 of the Civil Code) . The regime of the authorized sport creates
a presumption of lawfulness as regards the practice of the sport and the consequences that result
from it due to the naturel and ordinary cause of events(art 901 Civil Code)That includes the
predictable mediate and immediate consequences: thus the injuries or damages derived from the
inherent risks of the normal practice of an authorized sport are justified in advance the same as
the activity they precede. (cause of justification). Cfr., “Lesiones Deportivas”, LL 151P1055.
Some important doctrine and jurisprudence think that this notion is only applicable to violent or
dangerous sports but not to those that by nature are not normally risky. For example, Mosset
Iturraspe, in his comment to the decision in the “Cottroneo case”, points out that when Borda
speaks of “surpassed liability, irresponsibility and permitted activity” regarding the sportsmen
that expose themselves to the risks of sports stimulated and protected by the State, he
exclusively refers to dangerous sports whose practice requires an expressed authorization of the
state; where the participants expose themselves “voluntarily to the risk” of damage, and where
the causing of harm is within the rules of the game. Borda refers to boxing, to the boxing match,
as he explicitly states in his notes. But he hasn’t wanted to include other sports that are either
not dangerous in themselves, or entail risks to the participants, or contain rules that allow
damage or need an express authorization for their practice as football or rugby. Ob cit p 386., In
the same vein, Mayo JA “Daños sufridos por deportistas en la práctica de su actividad” in
Revista de derecho de Daños 2010-2, Daño Deportivo, Rubinzal Culzoni editores, Buenos
Aires- Santa Fe, p 40. See C N Civil y Comercial, Sala D 2/24/87, “Fernández de Lopez Dora N
y otro c/ Asociación Civil Club Atlético News Old Boys” E D , 125-512.
5 Among others, Orgaz (ob cit), Llambías (“Responsabilidad Civil proveniente de
Accidentes Deportivos”. ED.47; p947. , Núñez (“Tratado de Derecho Penal”; Lerner, Córdoba,
1987) and Jiménez de Asúa (Tratado de Derecho Penal, Losada, Buenos Aires,1961).
6 The rules of the game applied in the Olympic Games were far from uniform and
universal, on the contrary, they were of oral tradition; some judges called nomofilaces were in
charge of transmitting the rules from one generation to another and to instruct other judges
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