Public attention has focused again on the devastating impact abuse can have within sport following the recent criminal conviction of former Irish national swimming coach George Gibney.

As specialist legal advisers, we typically see sporting governing bodies, clubs or other organisations sued for compensation related to alleged abuse under the doctrine of vicarious liability, given that individuals involved rarely have funds or insurance to pay such claims.

One of the key questions is whether, and in what situations. responsibility can extend beyond the individual wrongdoer to the organisation that placed them in a position of authority. Read below for our insight into current vicarious liability issues in Ireland.

The potential for abuse within sport means sports organisations must be vigilant in their approach to safeguarding, which should sit at the heart of their structures and governance.

Organisations also need to ensure they have the appropriate resources to protect and support any victims of abuse, and support from national governing bodies should be sought wherever possible.

As well as being important for their own purpose, adequate measures are invaluable if legal claims do occur. Legal advisors, alongside insurers and brokers, are key to developing and implementing robust processes and provisions.

For specialist legal advice on safeguarding, managing risk or legal claims, please contact Partner (London) and Head of Sports, Imogen.Mitchell-Webb@h-f.co.uk, or Senior Associate (Dublin), Christian Carlyle, Christian.Carlyle@h-f.ie.

The Irish Approach: The “Close Connection” Test

The modern Irish position was most clearly articulated by the Supreme Court in Hickey v McGowan1 where it was confirmed that Irish law adopts a “close connection” test when determining whether vicarious liability should be imposed. The central question is whether there is a sufficiently close connection between the role entrusted to the wrongdoer and the wrong committed, such that it is fair and just to hold the employer / organisation legally responsible.

The courts have recognised that abuse can never form part of an individual’s legitimate duties, and the focus is therefore on whether the role itself materially enabled, facilitated, or provided the opportunity for the wrongdoing.

Abuse in Sports

The nature of sport can provide situations which give rise to the potential for abuse, including minors being vulnerable to abuse; and coaches / other individuals being trusted by both young athletes and parents, having access to young athletes in small groups or one-on-one scenarios, having access to changing facilities, and being involved in trips where parents may not be present.

Coaches are also often entrusted with responsibilities extending beyond the delivery of technical instructions. They may exercise significant influence over athletes’ development, progression and selection opportunities which creates an imbalance of power in the relationship and can potentially disincentivise abuse victims from speaking out.

When considering whether vicarious liability may apply, it’s important to consider the circumstances surrounding the wrongdoer’s role and whether the governing body, club, or other organisation has placed the wrongdoer in a position which facilitated the abuse by, for example, facilitating the types of unsupervised access listed above; and whether there is a sufficiently close connection between that position and the abuse complained of.

Guidance for Sports Organisations

Sports organisations must be vigilant in their approach to safeguarding which should sit at the heart of their structures and governance.

Sports organisations should ensure there are appropriate systems in place to:

  • assess the risks of safeguarding issues and abuse and put in place adequate control measures
  • vet and assess coaches, volunteers, and others with access to young athletes
  • provide safeguarding and anti-abuse training to all relevant staff
  • supervise interactions with young athletes wherever necessary
  • operate effective reporting and whistleblowing processes
  • respond promptly and transparently to complaints and concerns
  • enforce processes robustly, including having clear disciplinary and external reporting criteria
  • maintain clear governance and record-keeping structures

Sports organisations must also ensure they have the appropriate resources to support victims of abuse so that they feel empowered and supported to report abuse, appropriately protected throughout any investigation or disciplinary procedures that may follow.

For non-professional sports organisations, ensuring that appropriate procedures are in place can be a practical and financial challenge, meaning support from national governing bodies is key.

These measures are of clear importance from a safeguarding perspective and ensuring abuse does not occur, they are also key in helping sports organisations to manage and, where necessary, defend legal claims. Insurers, brokers, and the specialist sports team at HF provide specialist support in developing and implementing appropriate processes, as well as benchmarking existing provisions against industry standards.