Final Draft

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There is no such thingas Sports lawwhich EdwardGrayson proposed, it is merelythe context of the case, principles applied to Criminal
law
Table of Statutes
Offences Against The Person Act 1861
s.18
s.20
s.47
Table of Cases
Latsutina v IOC and FIS 27 May 2003, CAS Digest III
R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113
R v. Billinghurst [1978] Crim LR 553
R v Bradshaw (1878) 14 Cox CC 83
R. v CCC (2009) ONCS 249 Can III
R v Carlton Unreported, (1999), The Yorkshire Post
R v Coney (1882) 8 QBD 534
R v Donovan, 25 Cr App Rep 1, CCA
R v Evans (2006), Daily Telegraph, 15th
June
R v Gingell [1980] C.L.Y. 571
R v Johnson (1986) 8 Cr App. R (S) 343
R v Lloyd (1989) 11 Cr App Rep (S) 36
R v Miller [1954] 2 All ER 459
R v Pyatt [2013] EWCA Crim1203
R v Wagner [2013] EWCA Crim529
Watson v British Boxing Board of Control [2001] QB 1134

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Introduction
Sports law, it seems, has been accredited as its own discipline of law, much like Employment law or Criminal
law. However, there is one theory that this does not exist. In fact the concept should be Sport and the Law which
is one philosophy that was born from the original “founding father”, Edward Grayson. It is he who’s theory that
I abide by even though many people feel that his values and principles are thoroughly outdated, even if they are
not actually aged. The original theory was instinctive to the time but many persons of the legal sphere have
developed this principle over the short period of time up to the modern day. Many critiques have also developed
this theory to say that the original is far too outdated and is not relevant to modern times.
The nucleus of the argument from my perspective will come from the fact that Edward Grayson, via the written
medium extracted from one of his publishing Sport and the Law had strongly supported the involvement of the
law in the operation of sport. Such a quotation showing his inherent beliefs where he writes;
“…the law can and should come to the help of sport; and indeed, how sport with its high profile and image can
come to the help of the law…1
To re assert his point, Grayson makes the analogy that sport should be considered as any other distinction of law
because;
“For sport without rules and their control creates chaos. Society without laws and their enforcement means
anarchy.”2
Many of the people who are of the antithesis to Grayson’s beliefs on the topic have faith in the Corinthian
values that are a necessity to sport. It is felt that they are out of the realms of concept with traditional modern
day sport and should be consigned to a previous era of sport, one where professionalismand amateurismwere
never such categorised. So what are these said Corinthian values? On terms of literacy then these values are the
epitome of sportsmanship where values such as fair play and the joy ascertained from playing the game are the
necessary components of sport. This contradicting view comes from many people who have been a part of the
developing law and from authors who have seen the chance in sport where commercialisation has essentially
divided the values and thus increasing the cacophony of those who hold the principles that are contusive to
1
Grayson, E, Sport and the Law, 2nd
Edt (1994),London: Butterworths, pg7
2

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modern day sport, contradicting the Grayson approach. This is where it is felt that sport provides problematic
and anomalous situations with regard to the law.3
The vast quantity of the sources obtained and referenced in this piece are fromsecondary research. The authors
used to either affirm my point, or those who directly contradict the approach and principle I agree with, have
already stated their beliefs. The quotations obtained come directly from their work in the written form, either
coming from publications, journals, reports and texts published. The validity of such come from the fact that all
of these reports and writings have been published and have been accredited to the scholars such as Michael
Beloff QC, Hayden Opie and Simon Gardiner who have written the pieces and the reliability is that the vast
majority of the publishing have come from recognised authorities such as the International Sports Law Review
and the Journals of Criminal Law. Some will come second hand from comments made referencing the texts
from those who play an active role in the sports law world. These will form a balanced argument to show that
even still, Grayson and his beliefs live long after the man has passed and that even now, in modern-day society
where the role of sport commercially, economically and even governmentally is changing, traditional beliefs and
methodologies are the best way forward in dealing with and problems specific to the matter.
The case of R v Barnes4
will also act as a fulcrum to my argument as this is a case which sits with the principles
that Grayson adopted but has been used in a more modern day society, seemingly acting as an anomaly to the
floodgates which are invoking the courts authority. It is not only the case specifics I will look at but also the
judgements and the ratio decendi that made the case such a forthright piece in this thesis.
In this piece I will also venture into looking at the reasons why there is a vast thrum of cases that seem to take
the disciplinary process out of the hands of those in governance of sport and into the courts of the land . Is this a
regulatory problem? Is it a notion that Grayson’s theory is so outdated that it is deemed non-applicable and that
the courts powers is the way forward when such circumstances arise? To illustrate my point I will look at a case
which was dealt with by the sports authorities but I will hypothetically translate this case into a case which
reaches the court and will go through what would have happened had this route have been taken. I will compare
and contrast it to another case involving the same sport but one which did reach the courts. What were the
differences and why was there a difference? Surely for continuity purposes they should h ave both been
3
Livings, B, A different ball game- why the nature of consent in contact sports undermines a unitary approach, Journal of Criminal Law,
(2007), Para 3
4
[2004] EWCA Crim 3246

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potentially criminalised or dealt with internally by the Sport’s Governing Bodies. Potentially, what are the
ramifications of this and would applying a theory is deemed outdated been a useful factor in the stability process
when both cases focused on the use of one word?
Finally, I will assert my reasons why I believe that Edward Grayson’s theory should not just be applied today
but should be the sovereign theory which sports disputed should be based upon. Although there is a tangible
time difference from when the original notion was passed by Grayson to the writing of this piece in the 21st
century, I hope to show that although sport has developed through many fluctuating factors, as referenced
above, the original theory from the founding father of Sports law should stand the test of time. To conclude I
will give one reason from the man himself why his philosophy is pertinent;
“…why should offenders who commit a crime within their game not be punished for their villainy?”5
5
Grayson, E, Making foul play a crime (1993) Solicitors Journal 693

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Grayson’s Theory
Having already established that Edward Grayson was acclaimed to be the “founding father” of Sports law, just
precisely what did his theorem focus upon? The standout, almost headline quote of his theory was that “The law
does not stop at the touchline.”6
Somewhat obvious in certain quarters but there are some flaws that, over time,
people have illustrated and have been verified with judicial precedents.
But why is the above quote such a prominent phrase when it seems so palpable. Law applied in the 19th century
certified that“…sport does not automatically exempt its perpetrator from potential liability.”7
Yet the issue of
pertinence when amalgamating criminal law to sporting misdemeanours for the imposition of disciplinary
mechanisms still arouses consideration. Grayson was in the firm belief that “…without the Rule of Law in Sport
you have chaos…”8
The courts, which upon Grayson’s credence should have the final say when violence exceeds what the laws of
the sport, have not come out and categorically said that hold sway to his beliefs, the notions forecast have held
to be firm. In R v Lloyd9
the court claimed categorically that “…sport does not have a licence for thuggery…” In
that quote alone, we can ascertain that sport does not condone violence nor will it be excused. Just because the
incident took place in an organised setting, where conduct that exceeds the jostling’s of everyday life is
communal (which amounts to the offence of battery in societal settings), does not allow for violence to either
take place or escalate to a point where criminality transpires. An advocate of Grayson, Stefan Fafinski, argued
that the application of the law in criminal assaults are such as to make them “so similar that it is difficult to see
any meaningful delineation for criminal liability” when regarding sporting circumstance, thus demonstrating
that a sport cannot operate to remove a person's behaviour entirely fromthe sphere of the criminal law.10Another
unembellished reason for the implications of Grayson’s theory is simplicity relating to the law. Although
rhetoric in its application the obvious question is “…why should offenders who commit a crime within their
game not be punished for their villainy?”11
The palpable comparison is that if the organised setting still relates
to an act of villainy, then punishments appropriate to the act should be administered.12 The law is ascendant to
all other form of legality (sports laws and regulations) so using this concept would only benefit the mechanism
6
Grayson, E, CitedGreenfield, S& Osborn, GLaw and Sport in contemporary society, (2013) pg98
7
Lewis, A & Taylor, J Sport: Lawandpractice2nd
Edition, Tottel Publishing(2010), pg753
8
Grayson, E, Sport and the Law: A returntoCorinthianValues? [1998] 6(1) Sport andthe LawJournal, pg5
9
(1989)11Cr App Rep (S) 36
10
Fafinski, S, Consent andthe Rules of the Game: The Interplay ofCivil andCriminal Liability for SportingInjuries, 69 JCL 414, (2005)
11
Grayson, E, Making foul play a crime (1993) Solicitors Journal 693
12
Anderson, J, Policingthe sports field: the roleof the criminal law, I.S.L.R., 2(May), 25-31,(2005), Para 13

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and control over sporting discrepancies. This feature means simply that “…the law can and should come to the
help of sport…”13
because the nature of cases that have gone above and beyond the governing bodies control
and into the hands of the courts have increased, especially in the lesser standards of those playing the game
where the criminal or civil form of punishment is more apt.14 This principle can be seen in a chronological time
frame where villainy or thuggery was punished in this way from the Victorian times until 21st century. Cases
such as R v Bradshaw15
, recognised that the rules of the sport should not “…lawful which is unlawful by the law
of the land…” 16
up until and beyond the case of R v Carlton17
where the defendant was punished even though
there was the opinion from his father, that he was not a “violent criminal”. Following Grayson, you do not have
to be a violent criminal per se, you simple have to breach the rules of the land and in the act of the kick and he
broke the victims’ jaw warranting culpability, contrary to his father’s words. Both cases show that criminality
will occur and Grayson’s principles will resonate because the acts were not “…legitimate means of playing
Rugby Union…”18
however instances like this can be applied to any sport where the rules of the game are
broken and consequently, so are the laws of the land. In its humblest form, the theory basically queries if there is
a punch in a street the how or why this is and why should be treated any differently to a punch on a pitch. Bo th
scenarios breach laws. One is the law of the land and the constitutional norms of society and the other combines
a breach of the laws of sport and the former but very rarely does the matter ever get presented as an offence that
breaches the countries jurisdictional decrees. Why should there be seen to be a difference just because one
setting was in an organised game, which still requires a command for abiding with the laws of the land as well
as the rules of the game? Criminal liability for violent behaviour by sportsmen should exist.19
There is an ambiguity if you will to the theory. Sports often mean vehemence is the main aspect of it. One sport
that has caused the most controversy and can be linked directly to the theory is that of Boxing. By nature it is a
combative sport where, in essence, punches are thrown in order to hurt the recipient and attain the win. In any
other walks of life, this bout is merely a street fight, but deemed legal because the sport/fight is organised by a
recognised body. Boxing and Martial Arts contests such as Karate have caused a strong debate, both for and
13
14
Anderson, J, Policing the sports field:the role of the criminal law,I.S.L.R.,2(May), 25-31, (2005), Para17
15
(1878)14Cox CC 83
16
Ibid at 84
17
Unreported, (1999), The YorkshirePost
18
19
McCutcheon, J. Paul, Sports violence, consent and the criminal law. N.I.L.Q, 45(3), 267-284 (1994)

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against both the legality and morality of the sport.20 There are many views that add sustenance to Grayson and
his novel creed; three such accredited individuals express views that;
“…can hitting another person with fists, feet or sticks even be considered to be sport?”21
“The only purpose for which power can rightfully be exercise…is to prevent harm to others…his own good
either physical or moral is not a sufficient warrant.”22
“It is always a good reason in support of a prohibition that is probably necessary to prevent harm (physical)…it
can be morally legitimate to prohibit the conduct on the ground that is inherently immoral…”23
These three theorists are not in the minority. Grayson was the forbearer of such an idea that violence should be
criminalised, the above just echo his sentiments. They simply re-iterate the view. So, why should sport that is
essentially legalised violence be permitted? In accordance to the above, violence through combative sports,
should be eradicated because the harmcaused to the potential victimis criminal. This standpoint not only comes
from a legal perspective but other professionally constructed publications have expressed their concerns that it’s
not just the violence that is illegal but the risk of injury “…is so great that its legality can no longer be tolerated
by society…”24
However, the law has applied itself to sit on the middle ground. The courts have accepted the
fact that these sports are combative and do cause injury but they are lawful because they fall within the criteria
of a recognised sport. On the other hand, if we were to apply the approach that would favour Grayson, sports
such as the above would not be sports. Legalised brutality where criminality occurs in every bout and the risk of
injury is prodigious would be outlawed. This would simply eradicate any such problems within the law and
would eradicate the risk of future cases going to the court’s jurisdiction.25 In “Watson v British Boxing Board of
Control”26
the governing body were liable for not having the correct medical supplies in place, even though the
direct responsibility for this was the event holders. Ultimately the brain haemorrhage was caused by the lack of
such facilities so the governing body breached its duty of care to the participant. Following on, Grayson also
alludes to the sport’s bodies fragilities in having the wherewithal to deal best with matters and the fact that the
simply do not have necessary the correct acumen when such instances occur. Authenticating his point he also
makes reference to the element that when they have had the opportunity to make the correct decisions, they
20
Summerhayes, J, Analysis: the legality of combat sports, W.S.L.R. 7(3), 14-16. (2009), Para 17
21
Gardiner et al, Sports Law ThirdEdition(2006),Cavendish Publishingat pg620
22
Mill, JS, On liberty in three essays (1975), London:OUP,Chapter 1
23
Feinberg, J, The Moral limits of the Criminal Law Volume1: Harmtoothers (1984), Oxford: OUP, pg26-27
24
The Boxing Debate (1993), London: BritishMedical AssociationProfessional DivisionPublications
25
Charlish, P, The Astrid Andersen case, I.S.L.R, (2004), Para 44
26
[2001]QB 1134

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simply have not enraging, those who abide to Grayson. Grayson has eluded on this point by stating that “The
concept that sporting supervisory bodies should usurp the power of the courts and the system of British justice
cannot be supported by any cogent argument” His reasoning is best centred on the fact that commonly, the
sporting regulators have no shrewdness with a direct reference to criminality, whereas the criminal courts are in
the best, more specialised position to deal with matters that occur beyond the touchline which are criminal. In
this ideology, if the act is likely to breach the rules of the land then the act in turn is guaranteed to have breached
the rules of the sport. In a position of sovereignty, the laws of the land are superseding to the laws of the game.
“The concept that sporting supervisory bodies should usurp the power of the courts and the system of British
justice cannot be supported by any cogent argument”27
Thus, rather decorously, Grayson sees this as apt and
impartial method to suitably castigate the offender in the more applicable way – the courts. Again another
citation reflecting Grayson’s view is that “If a person intentionally or recklessly causes harm to another in
order to prevent them from reaching a ball or for reason of sheer thuggery, then these actions are in breach of
the criminal law”28
, as well as the law of the sport, but it should be viewed as a criminal act.
The final, and possibly the most important factor of the theory is just what does this mean for sport, the law and
the two combined facets. Are we in a position where is it Sports Law or is it a relationship between sport and the
law? Grayson is unequivocal about his position on the matter where he believes that “No subject exists which
jurisprudentially can be called sports law.”29
As a soundbite headline, shorthand description, it has no juridical
foundation; for common law and equity creates no concept of law exclusively relating to sport. Each area of law
applicable to sport does not differ from how it is found in any other social or jurisprudential category. “When
sport hits the legal and political buffers, conventional and ordinary principles affecting the nature of the
appropriate sporting issue concerned including parliamentary legislation are triggered into action.”30
This is
the foundation which shows that the relationship is key and that the “sports law” is not an ideal or even a real
proposition.Much akin to other factors that dictated his position, if an act occurs beyond the touchline, does not
create an exemption from the external disciplines of law. When an act crosses the boundaries of what is socially
acceptable, irrespective of the rules of the game, which will be breached because of the act, means an adequate
setting must be made for punishing the offender in question.31 The special relationship of sport and the criminal
law was excellently summarised in a Canadian case where citation referred to the fact that: “The playing field is
27
Grayson, E, Making foul play a crime (1993) Solicitors Journal 693, with Catherine Bond
28
29
Grayson, E, Sport and the Law, (1999), London, Butterworths, pg37
30
Grayson, E, Sport and the Law, (1999), London, Butterworths, pg37
31
Boyes, S, Sports Law: Its historyandgrowthandthe development of keysources,(2012), Legal Information Management 86, Para 2

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not a criminal law free zone. The laws of the land apply in the same way as they do elsewhere. The legal
analysis of whether a crime has been committed on the playing field is the same as it is on the street…”32
This
shows that the principles of Grayson are adopted universally and to a point of accomplishment where such
violence is not and should not be tolerated just because the surroundings are restricted within the touchlines.
Finally it is viewed that the original text which proclaimed the theory does stand the test of time. Advances in
the law or relationship, depending on your perspective, have been made during the original proclamation up to
modern day times. The link between the two is the formation of Grayson’s Corinthian values which it is felt
should be the constant nucleus of sporting competition. Grayson cited examples of sportsmanship, he disclosed
David Gower and Gary Lineker as sportsmen who played the game in the correct manner by adopting fair play
principles and sporting behaviour where a will to win was apparent but the behaviour that theses aforementioned
sportsmen adopted is the way in which all should follow. Grayson's book commences with a chapter that clearly
sets his perspective as being rooted in the early twentieth century, in particular against the backdrop of the
Corinthian spirit. In this respect, Grayson's work forms an important contribution to the literature in this field, as
it constitutes a compelling historical narrative of the development of the discipline. As little as three years ago a
report written by Michael Beloff, president of the British Association of Sport and the Law (B.A.S.L), who has
been known to oppose Graysonians and its subsequent theory stated in a lecture dedicated to Grayson agreed
with the principle. Money has made the sporting scene more materialistic where creating revenue is as important
as winning which then starts a vicious cycle. Either way, he felt that “There can be no monochrome comparison
between the higher Corinthian values of yesteryear and the morally bankrupt nature of the behaviour of a
minority of professional sportsmen today.”33
Upholding these principles is an integral part of maintaining the
ethics of sport, which began fromthe penning of Grayson’s text which instruct the adopting such values. If such
standards are to be maintained then his later rationale of applying criminal standards to villainy would be a
natural progression to uphold this theory.34 The cycle begins with sporting standards irrespective of the rules, to
sportsmen applying the rules of the game to practice but if the cycle is broken by a felonious act then the person
who is in breach should face such a sanction, or at least a trial by peers.
32
R. v CCC (2009) ONCS 249 Can III, per Duncan, J
33
Beloff, M, Fair Play - is there still room for the Corinthian Spirit in sport? (2009), I.S.L.R, Para 31
34 Fafinski, S, Consent and the rules of the game: the interplay of civil and criminal liability for sporting injuries, Journal of
criminal law, (2005), Para9

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Conclusively, Grayson was of the old school approach. In fact he was the idealist who corralled such an
approach. With his articulate style and persuasive approach the values applied seemed to be a correct and valid
assertion to dealing with such matter he relates to. Watered down to its minimalism, the fundamentals are that
the “law does not stop at the touchline” fromthe groundings applied by previous cases that “…sport does not
automatically exempt its perpetrator from potential liability…” Justification from this has been further
employed in more modern day scenarios where the courts have given as part of the reasoning that “…sport does
not have a licence for thuggery…” Yet in the modern day confides of sport we are faced with obstacles such as
the contradiction to sports associated with violence, an unethical oxymoron where violence is the sport and
“villainy” – as referred to in R v Lloyd - is the way to win the fight. Boxing is the obvious example where
Grayson’s theory is embellished. Likewise, delving into the piece in a more analytic form, the governing bodies
who administer the rules to which the participants apply themselves are qualified to make the rule, that there is
no doubt. However, when a rule is breached then capabilities are correctly applied in a way in which a sporting
sanction can amount. But if the action is criminal then there capabilities are restricted and those in a position
where they are best qualified to deal with the matter are external to the bodies. Henceforth why the criminality
comes to light and why the criminal courts should deal with the matter.35 In a world where the Corinthian values
are disappearing and acts of criminality are seen as common place in the game it does make you wonder why
acts deemed illegal in its purest from are not dealt with in accordance. At the constitutional crossroads where an
act is committed on a sports pitch should not give the offender a relevant defence to say that “I was playing
sport” whereby if the same offence was committed anywhere else, he or she would be punished.36 The essentials
of the theory are accurate and I believe are still applicable today in the contemporary sporting society where
such values are lost in the ether of the profitable and commercialised whirlwind that we see indulged in sport. A
criminal act is a criminal act, make no bones about it, which is why I feel the theory is still relevant today and
through the grim and murky idiosyncrasies applied to the law today should play a more prevalent role in the
relationship between sport and the law, after all “…the law can and should come to the help of sport…”37
35
Thorp, S and Adam Leadercramer, A, Self-regulation of sport: arguments for and against, W.S.L.R, 8(8), 7-9 (2010), Para 20
36
Barnes, M, Crime and punishment on the sports field. W.S.L.R, 3(9), 6-7, (2005), Para 11
37

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Those who oppose Grayson
If Grayson’s theory is archaic and non-applicable to modern day sport, then why? Has sport really developed so
much since the announcement of his theory that was seen as the beacon, the favoured approach to use? Many
writers and publications have not abandoned the theory but have made their criticisms known. Ergo, these
journals written by scholars and academics have proposed newer, more advanced and relevant applications to be
used which have modified to the current times. One of these questions when the criminal courts should be used
in relation to sport based criminal allegations, if ever.38 Remember, sport, in comparison to Grayson’s wishes
does not necessarily reflect any Corinthian Values anymore where the morals and ethics such as fair play are
seen as admirable and commendable but not as paragon or quintessential, sport is now a results business where
winning at all costs counts for everything.
In reality, sport has to be seen as a sport with an authoritative body regulating and governing the sport. To this
extent, Fafinski says that these supervisory powers must control the disciplinary aspects too.39 With this in
place, many feel that the buck stops there. One naysayer to Grayson is Gardiner who is more than forthcoming
in his attitude. He has in many formats said that using criminal law to rheostat the on-field conduct of sports
participant at whatever level significantly “…runs the risk of adversely and irreversibly changing the nature and
dynamics of organised sports…”40
as well maintaining the autonomy of sport where the sport and only the sport
should regulate itself through the actions of the governing bodies. After all, it is felt that they are the most
qualified to implement such regulations and taking powers away from them would significantly dilute their role.
Gardiner writes that“…governing bodies should use their own self-regulatory powers of punishment more
effectively...”41
From an analytical point of view, there is little scope for argument from this perspective. Taking
powers away from the governing bodies that are the authoritative powers that regulate the sport they control
significantly attenuates their abilities. For sport to be classed as such, you need a governing body th at holds
almost a total monopoly of power and that includes in its disciplinary processes. Eradicating this defeats the
object of the autonomy of sport.
The autonomy of sport is a simple but effective way of dealing with any penalising matters. Such matters are
dealt with by the governing bodies who implement the rules of the game. In scenarios this could be a sending off
38
Farmer, P Sport: criminal prosecutions for assault: only to be used when grave, M.C.P, 9(2), 20, (2005)
39
Fafinski, S, Consent andthe rules of the game: theinterplay of civil and criminal liability for sporting injuries, Journal of criminal law,
(2005), Para 15
40
Gardiner, “The law andthe sports field”[1994]Crim LR 513at 515
41
Gardiner, “Shouldmore matches end in theCourt?”(2005)155National LawJournal 998

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in game time or other sanctions including bans or fines if the authority in question feels that the in -game
punishment is not suitable. It is a common correlation that the lesser the injury, the lesser the sanction imposed.
Bans produced by Governing bodies for fouls are representative of the injury – three match bans for serious
conduct in football are a good example of this where a person can expect to be sanctioned for the conduct they
have committed “…they have inevitability and although they fall outside the legalistic interpretation of the
rules, they come inside the working culture of the game…”42
Neither the victimnor the governing body are ever
duty bound to present the matter to the Crown Prosecution Service (C.P.S). The sporting fraternity often finds it
difficult to accept that their chosen pastime might be subject to the criminallaw. An ethos of “sporting omertà”,
whereby members of individual sports communities appear reluctant to give evidence in criminal investigations,
is a notable feature.43
It is a natural progression in modern day sport that the higher up the echelons you go, the more fiscally you are
rewarded. Corresponding this with the aforementioned point of bans and financial sanctions imposed on the
player for any player whose conduct was felt to be contravening to the rules, it is better felt that any
punishments would be more suited to the governors of the sport, not the criminal courts themselves. One prime
example of this occurred during a Premier League football match in 2005. Team-mates Lee Bowyer and Kieron
Dyer of Newcastle United became embroiled in an altercation in which both men were sent off. Mr Bowyer was
fined £258’000 in total - £30’000 by the Football Association and banned for seven games. His employers fined
him £228’000 for the same incident. As the incident breached s.5 of the Public Order Act 1986, criminal
proceedings resulted. Correspondingly, Mr Bowyer was fined a mere £1’600 - £600 in fines and £1’000 in Court
costs. The greater punishment was handed down by the sporting authorities, wholly gratifying the fact that the
autonomy of sport principle is a better way of dealing with matters presented to them in comparison to the
courts44. Although fined in both settings, the greater punishment and deterrent arose fromthe sporting tribunal
he faced. Justifying the decision to prosecute the defendant, Nicola Reasbeck, chief Crown prosecutor,
Northumbria, said: “The criminal law doesn't cease to operate once you cross the touchline of a sports field”45
Something which Grayson advocates. However, it is hard to see what the criminal law added in this instance, as
the fiscal sanctions imposed was trivial to what he was monetarily punished by the sporting equivalents. It is
from this case and other examples highlighting such a predicament regarding liability to a sports person when a
42
Gardiner, S, Not playing the game; is it a crime? (1993) Solicitors Journal 628, pg629
43
Anderson, J, No licence for thuggery: violence, sport and the criminal law, (2008), Crim L.R 751, Para 26
44
Kamstra, S and Pat Rich, P, Bad sport. Legal Week 9(38), 32-33, (2007), Para 16
45
Norfolk, A, Fair Play under Scrutiny: BowyerPleads Guilty overPunch-up onPitch(2006), TheTimes

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greater, harsher sanction can be imposed by internal mechanismrather that the courts. This debate is the correct
forum for assessing culpability and imposing punishment. This subject has tended to polarise popular opinion,
with argument juxtaposing the idea that the criminal law should have no jurisdiction within the sporting arena
with principles of equality of treatment before the law. This polemic view is reflected in the judgments of the
criminal courts, notwithstanding the apparent mutual exclusivity of these positions, and judgments have
reflected an appreciation of the conflicting ideals.46
One other factor that severely diminishes the effectiveness of Grayson’s theory is the rules of the game in
question. Not all sports are physical and other sports, which are physical by nature, have different approaches to
the physicality associated with the rules.47 A punch in Rugby is illegal but not uncommon, as Joe Worsley said
“…if you do punch someone in rugby…it is acceptable…”48
whereas in Football it is cast as sin and the
perpetrator can expect to be heavily sanctioned. However in Boxing, it is the only way you can win a bout. Their
role [the laws of the game] in the substantive criminal law is much less clear; despite declarations by the courts
that “no rules or practice of any game whatever can make that lawful which is unlawful by the law of the
land”49
It is the continuing existence of boxing that serves as apparent evidence of the primacy sometimes
afforded to the rules. Herein is where the problem lies, where physicality is ingrained in the rules. Simon
Gardiner argues that one of the virtues of the playing culture paradigm is that it would allow for flexibility:
behaviour acceptable within the culture at one level of the sport would incur liability at another level. The
advantages of such elasticity are immediately apparent whereas Grayson’s theory of violence is universal across
all sports, regardless of the amount of physicality and contact involved between willing participants . However,
the practical application of this flexibility may also prove problematic: even an individual sport is played at
many different levels, by people of varying levels of ability and experience. The degree of flexibility that the
standard purports to offer would also appear contrary to the characteristic of certainty with which Gardiner also
imbues the concept: the two virtues are difficult to reconcile. It appears paradoxical, and indeed oxymoronic: the
greater the degree of flexibility, the less predictable the outcome; the more certain a rule, the less this allows for
flexibility.
46
Livings, B, “legitimate sport"or criminal assault?; What are the roles of therules andthe rule makers in determining criminal liability
for violence on the sports field?, (2006), Journal of Criminal Law, para 9
47
Pendlebury, A The regulation of on-the-ball offences: challenges in court. E. & S.L.J., 10(1), (2012)
48
CitedLewis, A & Taylor,J Sport:Law andPractice, SecondEdition, (2010),TottelPublishing, pg755
49
Ogden & Davies, (2006), Journal ofCriminal Law499

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As well as the rules of the game, another factor that diminishes the approach Grayson favours comes from the
players themselves. If a criminal act has been committed then the players must invoke the action to the relevant
authority, the Police. Yet it is held within sport that a players often consents to the majority of acts viewed as
criminal due to the high-octane nature of the game. This combined with the fact that in sports the majority of
contact is within the sports regulations but the ethical oxymoron is that the contact made on any other
occurrence in life would be punishable at criminal law. Something that was highlighted in the case of R v
Billinghurst where passing judgement indicated that;
“…those who play games commonly agree that they consent to the infliction of some degree of force which is
outside the rules because they know it is commonly practiced…”50
Likewise, a report that looked categorically into the matter sided with what was passed in Bradshaw. The report
published felt that all participants in sport effectively know what they are getting into with regards to physicality
in a contact sport. In turn it would not be uncommon that an accidental injury can, and often does occur, but this
formality alone should not render the applicant a criminal. Similarly, proving the mens rea would be very
difficult in such consequences. However, between 1977-1997 a significant number of criminal convictions were
made for offences involving unacceptable violence between rugby union players during the course of a
game.51Consent has been a defence used in sport for the main reason outlined and consequently it is felt, quite
unanimously among those in opposition to Grayson that “…many participants in sports will see physical
contact and resulting harm as consensual….”52
which means, froma point of view regarding the attitudes, that
they accept the risk of injury occurring from taking part in the game. If this was not the case, as Charlish argues,
then everyone who commits criminal nuisance is liable to imprisonment.53 One question that must be addressed
is just how far can this defence stretch? The general rule is that a person can consent to common assault, where
no injury has been caused, but not to the application of the force which causes himactual bodily harmor worse.
If such a rule were applied to sport, sport would not exist.54 This paradoxwill be discussed in depth in the latter
chapters.
Aside to the players, the players must abide to the rules. The rules therefore must come into question when
questioning the effectiveness of Grayson’s theory to modern times. The rules must be broken but the question is
50
[1978]Crim LR 553
51
Pandeketis: Journal of the International Associationof Sports lawReview 155
52
53
Charlish, P, The Astrid Andersen case, I.S.L.R, (2004)
54
Beloff, M, The specificity of sport – Rhetoric or reality, (2012), I.S.L.R 97, Para 26

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to what extent? How far do the rules have to be breached before criminality ensues? Writes and theorist have
made the commendation that if any criminal action must occur and only after the matter has been internally
dealt with where no clarity upon the matter can be reached, that it is when “normal play” has been exerted.
“Only when a player's actions can be considered to go “well beyond” normal behaviour for the setting…
should the police take action.”55
What is normal behaviour and how do would you define such a term? Normal
behaviour is simply adhering to the rules of the game, basically falling into the classification of what is
acceptable within the rules of the sport. Anything over exceeding this, which goes beyond or outside of the
rules, is therefore subject to the contrary. The consequences of classifying this at law could lead to problems
tantamount to Grayson’s theory where a court’s ruling would mean the impact “…of this may lead to governing
bodies being forced to change their playing rules to accommodate each new ruling of the courts or the
establishing of playing standards by sports independently of the law…”56
Thus sacrificing the autonomy of
sport, an integral feature of internal sporting admonishments.
Having mentioned in the previous chapter, many theorists and protagonists have called for sports of this ilk to be
illegal on health, moral and grounds of the participants’ well-being. To provide a balanced argument and use a
boxing analogy there are also who sit in the other corner. Of course, these theorists also provide valid assertions
about the context of the sport and its legality. From a strictly legal perception, Boxing is a sport and as a result
when a bout takes place, both participants consent themselves to any injuries that occur through the actions of a
bout, as long as they fall in line with the rules of the sport. Therefore, actual bodily harm is permitted.
The case of R v Coney57
where the passing judgements by the judges all gave reasons why violence in this
format should not either is classed as a sport and illegal.
“The fists of a trained pugilist are dangerous weapons, which they are not at liberty to use against each
other.”58
“…the object is the same and in each case some amount of personal injury to one or both of the combatants is a
probable consequence…I have no doubt then, that every such fight is illegal…”59
55
for violence on the sports field?, (2006), Journal of Criminal Law, Para 10
56
for violence on the sports field?, (2006), Journal of Criminal Law, Para 14
57
(1882)8 QBD 534
58
Matthew, J, Ibid, pg547
59
Hawkins, J, Ibid, pg553

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From the case the judges drew the distinction from Sparring (as Boxing was classified at the time of the case)
and Prize-Fighting. The distinction was that Boxing used points to award the fight a victor and loser, this
involved skill and not violence and was thereby not illegal. Also it is very noteworthy that a simple difference
was drawn. Boxing, or Sparring, had no mens rea for assault; it was a test of skill and no intention of direct
harm. Such a view has been maintained throughout time and through developments in forma social perspective.
Two reports published that have addressed this matter at heart to disprove Grayson’s notion and criminalising
actions that occur within the realms of sport.
“…it does not seem possible to distinguish…between those fights which are assaults and thus deserving of the
sanction of the criminal law and those which are not assaults on the basis of the intention of the
parties…Boxing remains outside the ordinary law of violence because society chooses to tolerate it..”60
“There is a strong philosophical objection to banning boxing, and yet there is no apparent Parliamentary
interest in doing so…”61
This alone seems to abate any possible criminality in sports akin to this. In the above, latter report the Health
spokesman was prompted on banning this form of combat. The succinct and seemingly definitive response was
that individuals have the rights and freedoms to involve themselves in sport and activities as long as they are
within the law and have full awareness and knowledge of the risks ascertained with such participation. Perhaps
Grayson’s Corinthian values have come back to haunt him due to the nature of this sport, Boxing, where the
skill is to win points to win bouts is where the skill and ability are the essential prerequisites for winning your
bout and any misconduct is dealt with immediately by the referee and the bravado by the boxers is merely a
show for the build-up and hype associated with this big money, box-office calibre of sport. However, it could
well be that Grayson’s theory simply is not sustainable in modern day sport, especially combative ones in
nature, because in reference to the inhumaneness of the contest “…the law has not seen fit to intervene…”62
In conclusion, there are many who oppose the idea proposed by Grayson. “Criminal law is very much a last
resort, and one that should consistently defer to robust internal disciplinary sporting punishments.”63
If it is
accepted that the criminal law delegates a degree of its function to the sporting authorities when considering
violence in sport, the disparity evident in the policing of the criminal law and the sporting authorities is further
60
Parpworth, N, Boxing andprize-fighting: Theindistinguishable distinguished(1994) 2 (1) Sport andtheLawJournal 5, pg8
61
Gunn, M, & Ormerod, D, Despite the law: Prize-fightingandProfessional Boxing: CitedGreenfield, S& Osborn, G, Law and Sport in
Contemporary Society (2000), London: FrankCass
62
Parpworth,N, Boxingandprize-fighting: The indistinguishable distinguished(1994)2 (1)Sport andthe LawJournal 5,pg8
63
Gardiner, S, Should More Matches Endin Court? (2005), NLJ 998 at 1000.

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evidence that conduct on the sports field is subject to different laws than that off the field. Therefore, what of the
autonomy of sport? The way the sport is played is also dependent upon the rules of the sport themselves. The
governing bodies formulate these rules, not the courts. If the willing participants can expect physicality, it is
highly unlikely that they will offer any notion of extending the arm of the law to aid there case if one should
ever arise. Simon Gardiner, one of the main lobbyists to Grayson states, quite correctively, that;
“If it is felt that a sport, or some aspect of it, is becoming too violent, then the courts could and should
intervene…howeverthere seems little point in the law intervening as the participants themselves are unlikely to
consider the criminal courts the appropriate forum for resolving such disputes.”64
If the governing body loses the right to punish wrongs within their sport then massive problem would arise.
Formally it is recognised that each sport is different. Boxing for instance is an organised sport. This is in its
classification different from your regulation pub brawl. The skill is often to win on points and not just to throw
punches with no direction. The origins of boxing were to win by points gained through skill and ability and not
through brutality. This is where the Governing body plays up to the role of enforcing the regulations. This
enactments therefore necessitates the role of any external aids. In a piece from the Lord Advocate this role was
seen to be applied correctly which negates Grayson to an extent. “Primary responsibility for on-field conduct is
placed on those involved with the playing and administration of the game…with the police only intervening in
exceptional circumstances.”65
The extent is that the autonomy of sport remains in place, a unique function of
sporting laws. If the courts were to decide in their powers on sporting resolutions where breaches of the rules
have been made, effectively we could be looking at the possibility that they themselves become the regulators of
sport. Claims have been advanced that the experience and expertise of the sporting bodies makes them the
proper forum for adjudicating disputes. This is hypocritical given both their limited powers and focus on the
interests of the sport. These factors render highly problematic the view that quasi-criminal offences should be
the preserve of the sporting authorities; it may be misguided to delegate to themfunctions to which they are not
suited.66 Either way, there is a snowballing effect that makes Grayson’s theory archaic due to the advancements
in sport and the way it is played. The fundamentals of his theory are applicable in some quarters but realistically
there are many people of greater academic acumen than myself who have made pertinent points which have
salient groundings that make his theory just that, archaic. The simple fact remains therefore is that if Sports law
64
Gardiner et al, Sports Law 3rd
Edition, (2006), Cavendish pg. 60
65
James, M & Gardiner, S, Touchlines andGuidelines; TheLordAdvocates response to sports field violence, (1997), Crim LR, Para 8
66
for violence on the sports field?, (2006), Journal of Criminal Law

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is to develop then the way forward is to embrace itself as an entity of law and not purely a relationship as
Grayson referred to.

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The idea of Lex Sportiva
If there is no such thing as sports law and that it is to be defined as Sport and the law as many Grayson
advocates wish, then what of this neo-modern model that has been introduced over recent times. I am talking
about Lex Sportiva or “sports law”. Just what is it and exactly how germane is the theory to modern day law?
Also, how detrimental is it to the notion of Grayson’s theorem?
The idea of Lex Sportiva is that it co-insides with the autonomy of sport. Lex Sportiva advocates effective
partnerships between sports governing bodies,governments, and law enforcement agencies .67Sport is and should
be wholly self-regulating on all matters concerning its own discipline. It is a common sense approach where
those who make the rules should also administer the rules. I am not so blinded by the notion to render it
deplorable or unacceptable, nor am I naïve enough to wash my hands of the monolith as wholly limiting, but it
does challenge the methodology sought by Grayson. In essence Lex Sportiva is sports law and it is a
predominant solicitation used in the 21st century.
If it is a concept applicable to modern times then just how has it advocates defined it and sought for its practice.
Michael Beloff describes the “cornerstone” of the founding principles of sports law as a “juridical demarcation
between the competence of ordinary courts and that of the sports bodies themselves”. Robert Siekmann defined
the concept as “the meaning of sport in relation to law and law in relation to sport…sports law is recognised as
an independent area of law.”68
Robert Parrish then focused his definition as the line of separation represents a
“constitutional equilibrium” between the two territories.69 These decision makers are the governors and
regulators of the sport themselves and the courts and tribunals upon which matters concerning the application of
sport are decided. The Court of Arbitration for Sport (C.A.S.) is the prime example of this where matters
concerning applications of law that are integrated with sport are dealt with, matters include contractual
resolutions and Anti-Doping discriminations, all of which fall foul of the sports laws but not the laws of the land
per se. Here it is felt that such authorities are in the best position to deal with any claims as first and foremost,
they have the knowledge and expertise and are therefore best practiced to decide on such cases, not other Courts
where two concept of law have amalgamated, for example criminal law in sport. Does this mean an abrupt end
to the approach initiated by Grayson? For its supporters, the involvement of ordinary courts risks upsetting the
“constitutional equilibrium” lying at the heart of the lex sportiva in which lines of demarcation are drawn
67
Bailey, B, A united front to protect the integrity of sport, S.L.A. & P. (2007), Dec, 4-7, para 3
68
Siekmann. R, What is sports law? Lex Sportiva andlex ludica: a reassessment of content andterminology, I.S.L.J. 2011, 3/4, 3-13.
69
Parrish, R, Lex Sportiva and EU Sports law, (2012), European Law Review, Para 14

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between courts of law and sports decision-makers.70 Anything otherwise would contradict the autonomy of
sport. How can sport be a connotation self-regulation if courts external to the discipline are making the rules for
us with regard to acceptable playing standards and governance? A nuance further upheld and seen to be the
leading light in this idiom. Self-regulation seems to be the way forward and Lex Sportiva is at the forefront of
this niche where journals have demarcated this as the development of common legal principles, the influence it
has on sports institutions' regulatory activities and the harmonisation of global sports law.71 The trend is for
commentators to acknowledge the existence of sports law. Michael Beloff, as we can ascertain, is a big
advocate. In his publications he, along with other scholars, is cited as writing that,
“…the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport,
differently from other activities or bodies. Discrete doctrines are gradually taking shape in the sporting field,
which are not found elsewhere …”72
These developments are beneficial to sport as they would uphold the regulations and abide the theory of sporting
autonomy. Edward Grayson and his theory do not facilitate to such an agreement. Even to this day his formula
still holds a certain quantity of credos. Backing his judgement, Robert Parrish, acclaims that it is not universally
accepted that a discrete jurisprudential category of law exists identifiable as “sports law”73 Validating Grayson
just goes to show that previous writings do hold a sense of time and that even though advances have been made
in this area of law, the original exclamations made do hold character. As Grayson quantified,
“…no subject exists which jurisprudentially can be called sports law. As a sound bite headline, shorthand
description, it has no juridical foundation; for common law and equity create no concept of law exclusively
relating to sport…”74
Grayson favoured the label “sport and the law”, reflecting his view that:
“Each area of law applicable to sport does not differ from how it is found in any other social or jurisprudential
category.”75
70
Beloff et al., Sports Law (1999), p.4
71
Casini, L The making of a lex sportiva by the Court of Arbitration for Sport. I.S.L.J, 3/4, 21-28, (2011), para 7
72
Beloff, M, Kerr, T and Demetriou, M, Sports Law, (1999), Oxford: Hart Publishing, pg3
73
Parrish, R, Lex Sportiva and EU Sports law, (2012), European Law Review, Para 2
74
Edt, (1994), London: Butterworth & Co, pg37
75
Grayson, E, Sport andthe Law, 2nd
Edt,(1994), London: Butterworth& Co, pg37

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However, his allies as you can imagine come to an understanding with him. Many of the original protagonists
sided with this view that there is no identifiable subject called sports law but that a viable relationship existed. A
concept called sport and the law. Although not definitively agreeing with the “sport and the law” model,
Woodhouse states in a publication that;
“I have often said there is no such thing as sports law. Instead it is the application to sports situations of
disciplines…but do remember there is no such thing as sports law.”76
In layman’s terms, if there is a breach of law and just because the instance occurs on a sports field/pitch/arena
should not discourage the use of the necessary regimen to deal with the dispute. If this happens to be a criminal
dispute then a criminal court should deal with the matter. If it is a matter for the civil courts then a civil court
should formulate their expertise on the dispute. The sporting characteristic of the case should not discourage the
use of using the courts best practice to resolve the matter in its entirety. Again this is a notion I approve. Yet
what of other academics, those who have a greater insight and antiquity concerning sporting legalities? Hayden
Opie provides a balanced argument with a wider rationale and provides examples of whether sports law is an
entity of law or merely a growing relationship between the two perceptions. Siding with the original theory
enacted by Grayson, Opie proclaims that;
“Sports law is one of those fields of law which is applied law as opposed to pure or theoretical law. Rather than
being a discipline with a common legal theme such as criminal law….sports law is concerned with how law in
general interacts with the activity known as sport…”77
This is well-adjusted by philosophy that the courts have distanced themselves from interaction with the sports
because they hold an aura of self-regulation. Although the courts have, reluctantly, become involved in
concerning matters, it is felt through bodies such as C.A.S who are specialised within the grounds of sports
governance should deal with matters if the governing bodies cannot come to a fair conclusion. He writes in the
same piece that;
“…in some fields of law the courts pursued a policy of non-intervention by holding that sports disputes were
private matters which did not raise justiciable issues.”78
76
Woodhouse, C, The lawyer in sport; some reflections, (1996)4 (3) Sport andthe LawJournal 14
77
Opie, H, Sports associations andtheir legal environment, in McGregor-Lowndes, M, Fletcher, K & Sievers, S(Eds), Legal Issues for
Non-Profit Associations (1996), Syndey: LBC pp74-94
78
Ibid

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The latter of the two views have become more and more popular within the view of academics. The recognition
of a sports law is seen to be the long term standpoint where sports law is emerging as a distinct area of law.79
The relationship will be an applied area of law negating the Grayson theory. Lewis and Taylor pronounce that;
“…the adaptation of English Courts of existing principles of challenge to address the particular circumstances
of sports governing bodies’ decisions is well on the way to construction of model of review of such
decisions…”80
To add to the chorus of those opposing Grayson’s model, many of which are developed through recent years, it
is felt that the definitive factor behind the need for a change of approach is to maintain the autonomy. Lex
sportiva goes hand-in-hand with this impression because for self-regulation to persist, Grayson’s theory must be
abolished. The relative autonomy of sport needs to be preserved – it is that special81 and that means that
sensitivity is needed to the particulars regarding the specifity of sport. The law, as a regulation, should only be
seen as a final resort, if at all, where it (the courts) has a role in guaranteeing “supervised autonomy”82 which is
felt will be for the good of the sport.
This autonomy is seen as where the pendulumis moving towards where principles are being adopted in order to
distance the entity from any illegality or irregularity. In simple terms, maintain the rules of the game and a
correct application of these is implementation enough to act as a deterrent. Examples of the creation of new
principles specific to sport include “fair play” where “…match decisions are unchallengeable,sporting integrity
is maintained…” Foster terms these principles the lex ludica, or pure sporting laws or rules of the game.83 In
another piece Foster claims that “Sports law (Lex Sportiva) is a transnational, autonomous legal order” he
suggests that a global rather than an international sports law currently exists, characterised by unique legal
norms.84 Likewise, the idiosyncrasies referred to by Allan Erbsen commonly termed the “specificity of sport”. It
is commonly argued by the sport’s governing bodies that rules seeking to promote and protect these specificities
lie outside the terrain of justiciable action, keeping the disciplinary procedure is house where autonomy prevails
refuting Edward Grayson’s theory85.
79
Blackshaw, I, The CAS and the emergence of a “Lex Sportiva". W.S.L.R. 2008, 6(11), 7-9
80
Lewis, A, andTaylor,J, Sport: Law andPractice,(2003)London, Butterworths
81
Kerr, T, Is sport special?(2001)9 (1)Sport andthe LawJournal78
82
Foster, K, Can sport be regulatedby Europe? Ananalysis of alternative models, in opcit, fn 145, Caiger andGardiner (2000)
83
Foster, K, Lex Sportiva(2010), The International Sports LawJournal, para 20, 22.
84
Foster, K, What is international sports law? S.L.B, 5(6), 14-16, (2002)
85
Erbsen, The Substance and Illusion of Lex Sportiva; The Court of Arbitration for Sport (2006), p.445

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In conclusion the development of the lex sportiva by the sports movement reflects their acceptance that those
affected by the decisions of sports governing bodies require some measure of sporting justice to be dispensed.
Without it, litigation before ordinary courts is encouraged, particularly where the regulatory and disciplinary
functions of sports bodies fail. Therefore, through its specialist knowledge of sport, the Court of Arbitration for
Sport is better able to dispense sporting justice than ordinary courts. While legal certainty and establishing
legitimate expectations are general principles of law, they remain a particular anxiety of sport’s governing
bodies86. However, those in the Grayson camp will say that this lex sportiva idea is a follow up because the law
is trying to cover up the poor practices employed by sporting regulation bodies. Grayson feels that “Clearly, the
administrators of sport have failed to control this evil within their own sports.”87
So the idea of the above is
simply papering over the long-standing cracks. One thing is for sure is that C.A.S and lex sportiva is becoming
more prominent in establishing an applied law, distancing itself further from any relationship that was
previously employed to entwine the two aspects of law. This is something Grayson would not approve of, but
given the factors such as time and the natural development of areas of law, Lex sportiva will become the
fulcrum when any such cases arise maintaining the importance of the autonomy of sport.
86
Parrish, R, Lex Sportivaand EU Sports law, (2012), European LawReview, Para 40
87

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R v Barnes
Having discussed the theoretical standpoints’, it is practicality that eventually is the assertive feature as to how
applicable the model is in its entirety. The case of R v Barnes is a case that highlights the hypothesis quite
assertively. Herein lays the case transcript from the official Court report88. On October 16, 2003, Mark
Barnes was convicted of unlawfully and maliciously inflicting grievous bodily harmupon Christopher Bygraves
contrary to s.20 of the Offences Against The Person Act 1861. On December 12, 2003, the appellant was
sentenced. The Court made a Community Punishment Order for 240 hours and ordered the appellant to pay
compensation in the sumof £2,609 to the victim. He appeals against the conviction by leave of the full court.
The prosecution arose out of a serious leg injury sustained by the victimduring the course of an amateur football
match in December 2002. The prosecution contended that it was the result of a “crushing tackle, which was late,
unnecessary, reckless and high up the legs”. The appellant admitted the tackle but claimed that it was a fair, if
hard, challenge, in the form of a sliding tackles in the course of play, and that any injury caused was accidental.
It was not disputed that the victim's injury was the result of the tackle and that the injury to his right leg
amounted to grievous bodily harm. 89
Seven different specific complaints are made in the grounds of appeal. They relate to specific aspects of the trial
judge's summing-up, but taken collectively they amount to the contention that the trial judge failed, in his
summing-up and in response to a question asked by the jury after they had retired, adequately to explain to the
jury the facts that needed to be established before the appellant could be convicted of the offence charged.
The trial then faced the problem in which all cases before this have faced. This question being when it is
appropriate for criminal proceedings to be instituted after an injury is caused to one player by another player in
the course of a sporting event? 90 The clarification may be that, until recently, prosecutions in these
circumstances were infrequent. Surprising really when there is now a steady but, providentially, still an
unassertive flow of cases of this type coming before the courts, and thus a need for direction. The starting point
is the fact that organised sports have their own disciplinary measures for enforcing their particular rules and
conducts. As a result, in the majority of situations there is not only no need for criminal proceedings, it is
88
Case Report – “R v Barnes (Mark)” [2004] EWCA Crim 3246;[2005] 1 W.L.R. 910(CA (Crim Div.)), International Sports LawReview,
(2005)
89
Dobson, P, Consent - sporting infringements, S.L. Rev, 45(Sum), 20, (2005)
90
Pendlebury, A, The regulation of on-the-ball offences: challenges in court, E. & S.L.J. 2012, 10(1), (2012)

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undesirable that there should be any criminal proceedings at all. Although archaic and dating back to the times
of R v Bradshaw91 where it was said that;
“…no rules or practice of any game whatever can make lawful which is unlawful by the law of the land…”92
The modern assumption is that a criminal prosecution should be reserved for those situations where the conduct
is sufficiently grave to be properly categorised as criminal. A notion corroborated by texts that affirm;
“The fact that an act is performed during participation in a sport does not automatically exempt its perpetrator
from potential criminal liability”93
When criminal proceedings are vindicated, then, depending upon their severity, prosecutions can and will arise.
These offences can be contrary to the Offences Against The Persons Act 1861. Retrospectively, these offences
range from assault; assault occasioning actual bodily harm contrary to s.47; unlawfully wounding or inflicting
grievous bodily harm contrary to s.20; or wounding or causing grievous bodily harm with intent contrary to
s.18. Where at bodily harm is caused, the defence of consent is generally irrelevant because it has been long
established by the courts that, exceptional situations apart, as a matter of law a person cannot consent to having
bodily harm inflicted upon him.94 Criminal law in the sporting arena, seeks to inhibit unnecessarily and
unreasonably violent play. Elliott and de Than express concern that consent risks being a patchwork of statute
and ad hoc case law this has already been realised in the realmof offences against the person.95 This should not
be the position in football, albeit that taking part in a football match does give rise to a risk of injury and even
grievous injury even though it is rightly viewed as a contact sport where injury can occur but does not formpart
of the mantra of the associated guidelines attributed to its partaking. 96
If what occurs goes beyond what a player can reasonably be regarded as having accepted by participating in the
sport, this indicates that the conduct will not be covered by the defence rendering consent negated. This case
also flagged up various jurisprudential concepts underpinning the topic; how the criminal law deals with the
matter where there is intention on the part of the injurer, criminal proceedings are possible in the absence of
91
(1878)14Cox CC 83
92
Ibid at 84 per Bramwell LJ
93
94
Parsons, P, Contact sports and the criminal law, C.L. & J, 174(4), 39-40, (2010)
95
Elliott, C and de Than, C, “The Case for a Rational Reconstruction of Consent in Criminal law” (2007) 70 MLR 225, Para 8
96
Reed, A, Sport: crime and consent, Crim. Law. 1, (2005)

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such intention.97Guidance on this matter which aided the court’s decision came from the Law Commission. A
report published by the aforementioned authority stated that;
“In a sport in which bodily contact is a commonplace part of the game, the players consent to such contact even
if, through unfortunate accident, injury, perhaps of a serious nature, may result. However, such players do not
consent to being deliberately punched or kicked and such actions constitute an assault… ”98
One issue that the courts had to deal with was in making a judgment as to whether conduct is criminal or not.
This is because of the courts' increasing abandonment of their traditional reluctance to adjudicate on actions
involving sporting injuries.99 It has to be borne in mind that, in highly competitive sports, any conduct outside
the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being
penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be
criminal.100 That level is an objective one. In the case situation presented in Barnes, the question the jury would
need to ask themselves was whether the contact was so obviously late and/or violent that it could not be
regarded as an instinctive reaction, error or misjudgement in the heat of the game? The judge when addressing
the jury said that the appellant could only be guilty if the prosecution had proved that what happened was “…not
done by way of legitimate sport…” with the prosecution were alleging that “for whatever reason it was that he
took it, “…was so reckless that it could not have been in legitimate sport and it was tantamount to an
assault …”.
The appeal was allowed because of the summing up applied by the judge to the jurors was inadequate regarding
the legitimate sport aspect. The Court of Appeals policy set out that the first port of call in cases such as these
should be the sports disciplinary bodies and only then should the most serious of cases reach the civil or
criminal courts with the justifications of eliminating any floodgate scenario which could follow up had t his
configuration not be followed. Thus, the position is;
All injuries inflicted by contacts unconnected with the playing of the game are criminal
All injuries caused by unreasonable contacts or contacts that carry an unreasonable degree of risk are
criminal &
97
Andoh, B, Parsons, S, Jones, P andWatts, B, Personal injuries in professional football - legal aspects (UK), International Sports Law
Review, I.S.L.R. 60, (2010), Para 2
98
Consent andoffences against the person: Law Commission ConsultationPaper No. 134 at para10,pg12
99
Shetty, R, Keep it down son or you're off!, H. & S.L, 5(2), 9-10, (2005)
100
Reed, A, Sport: crime andconsent, Crim. Law. 1, (2005), Para11

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All injuries caused by contacts that are part of the normal reasonable playing of the game are not
criminal101
The Court of Appeal, on the appeal, made very clear assertions as to how they expect this area of law to develop
and how best such disputes were resolved. As all organised sports have an authority that deals with its
disciplinary matters then this should be the first, and commonly, last port of call. In Barnes, then, the Court of
Appeal has given some authoritative guidance as to where the line is drawn between legitimate and unlawful
violence in the sporting arena.102 As Lewis and Taylor make note “…in the majority of situations, there is no
need for, and it is undesirable that there should be, any criminal proceedings…”103
A quote that is verified from
the judgment in Barnes where it is felt that only conduct so grave should amount to criminality or to open
criminal or civil proceedings. In all, sports cases should be kept out of the courts in all but those deemed serious
enough to warrant criminality. Such a notion was also commented upon in the latter case of R v Evans104
where
the presiding judge told her jurors to throw out and acquit the defendant against the chargers of common assault
and assault occasioning actual bodily harm from an incident in a Rugby Union match. Although the act that
caused the injury was a stamp, the fact that the resultant injury was only slight bruising meant she felt the case
almost under-qualified to be dealt with in criminal courts. Judge Bolton stated quite emphatically that “I am
flabbergasted that the CPS wished to continue with this…” with academic reasoning go so far to say that;
“…the judge is clearly and it is submissively correctly showing that she did not consider and act that caused so
little injury to its victim to be sufficiently grave to be properly categorised as criminal.”105
The case is significant on many levels. One quote fromthe judgement states that “…in the majority of situations
there is not only no need for criminal proceedings, it is undesirable that there should be any criminal
proceedings”106
The importance of this should not be underestimated. The law might not stop at the touchline,
interacting to a degree with Grayson. However the judgment would suggest the governing bodies are better
suited to dealing with such matter, especially when comparing them to the criminal courts, allowing for a greater
flexibility in the sanctioning process In this case citing an example, any pre-meditated tackles viewed as forceful
can be punished internally. This process has numerous advantages. Time is the most obvious benefit. The time it
would take from the incident to the final sanction internally would be a lot less in comparison to the time it
101
Gardiner et al, Sports Law: ThirdEdition(2006), Cavendish Publishing, pg612
102
Fafinski, S, Consent andthe rules of the game: the interplayof civil andcriminal liability for sporting injuries, J. Crim. L. 414, (2005)
103
104
(2006), DailyTelegraph, 15th
June
105
Lewis, A & Taylor,J Sport: Lawandpractice 2nd
Edition,Tottel Publishing(2010), pg766
106
[2004]EWCA Crim 3246

28 | P a g e
law
would take from the act to the trail in any criminal or civil procedure. In turn, internal disciplines if applied
manifestly release time constraints against the C.P.S for such incidents as they would be internally dealt with.
Indeed, for the autonomy of sport to be acknowledged as the appropriate penalising mantra, through the
governing bodies application, the organisation go against what Grayson states. They must be efficient and must
show the same principles that the courts would apply. In essence they must be strong, decisive and unequivocal
in addressing the problems and sanctioning must be appropriate to the act in question. Something which has
been apparent over recent times. Finally, it can be said that due to the increasing professionalism of sporting
bodies in their behaviour of independent and quasi-judicial disciplinary measures suggests that they are
becoming adept at confronting any issues which can be classed as a the serious incidents away fromthe sports
pitch,107 Supplementary diluting Grayson’s theory. The sports playing culture which came into question.
Somewhat controversially, these theories behind the playing culture advise that just because an act seen to be
outside the rules is not literally unlawful from a legislative point of view. Participants, under the notion of
consent, are willingly prepared to accept actions that could “reasonably be expected to happen during a
game”108 On a case level alone and as a precedent this perhaps shows that the old theories attributed to Grayson
are now becoming archived and that innovative, developmental approaches are being adopted to enact with the
modern approaches made by both the courts and the internal sports bodies who deal with disciplinary matters.
107
Pendlebury, A, The regulation of on-the-ball offences: Challenges in Court, (2012) 10ESLJ 27
108
R v. Billinghurst [1978]Crim LR 553

29 | P a g e
law
Hypothetical approaches to using the Grayson Theory
To highlight, from a practical sense, just how Grayson’s theory is still a viable and more than desirable option to
dealing with such indiscretions was shown earlier this year. On Sunday 24th April 2013 at Anfield Stadium,
Liverpool, a Premier League football match between Liverpool Football Club and Chelsea Football Club took
place. Approximately 75 minutes into the game an off the ball tussle occurred in the Liverpool penalty box
between the victim –Branislav Ivanovic - and defendant –Luis Suarez. What seemed innocuous soon showed on
the television replays that the defendant bit the arm of his victim. So just how is this one instance in sport show
the need for Grayson’s theory to be applied?
The bite which will be referred to hereafter as the act would contravene s.47 of the Offences Against the Persons
Act 1861 (OAPA ’61). This offence is classified as Assault occasioning Actual Bodily Harm. Classification of
this offence can be determined when a person assaults another, thereby causing Actual Bodily Harm (ABH).
Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of
the victim: such hurt need not be permanent but must be more than “transient and trifling”109 It is a triable either
way offence, which carries a maximum penalty on indictment of five years' imprisonment and/or an unlimited
fine. In criminal law, the Crown must prove that the defendant fulfilled both the mental and actual elements of
the crime. These are classed as the mens rea and actus reus, both of which are achieved. The mens rea for the
offence is either through intention or recklessness. It was clear to see that having grabbed hold of the victims
arms prior to the bite that he had some intention to cause the victim some harm, the harm just happened to be
administered in the form of a bite. The actus reus of this offence is that the defendant committed an assault or
battery which caused the victim Actual Bodily Harm. It is fair to say that the actions of Mr Suarez satisfy the
notion of assault because the act he committed would have been both immediate and unlawful as well as being
personal violence which the victim apprehended. The bite could well have extended into the definition and
therefore the acceptance that a breach of A.B.H was also committed. As quoted in R v Miller110
where the
passing judgment stated that "Actual bodily harm includes any hurt or injury calculated to interfere with the
health or comfort of the victim" The act committed would have interfered with his health as he made complaints
to the officials and was treated by the clubs doctors.
However, what could have happened and what did actually happen shows the vast divide from veracity and
possibility. The Football Association administered Mr Suarez with a 10 game ban. During this time, he will still
109
R v Donovan, 25Cr App Rep 1,CCA
110
[1954]2 All ER 459

30 | P a g e
law
be employed by his club who will actively pay his wages. The 10 game prohibition was applauded in some
quarters yet criticised by others (who presumably would be in the Grayson mould of rationale). His employers,
Liverpool F.C naturally felt a sense of disdain upon the ban claiming that they were “shocked and disappointed”
in reference to the length of the ban. Perhaps there is some justification to what they alleged because 6 years
previously, an incident between Ben Thatcher and Pedro Mendes, the latter received concussion and suffered a
fit. The incident placed a high degree of scrutiny upon the disciplinary procedures approved by the F.A, saw Mr
Thatcher receive an 8 game ban. On the other hand and bearing in mind his previous altercations which included
an 8 game ban for racism and a 7 game ban when he plied his trade in Holland, again for a bite, this was seen to
be applauded. One such view was that;
“The FA has often been criticised for being too slow and too soft on big disciplinary decisions. It can be
accused of neither today. The 10-match ban for Suarez sends a really firm message that offenders will be
punished…”111
The reality is that apart from his participation in games, has he really been punished? Almost certainly he will
be publically chastised for his actions but as mentioned he is still on the payroll and is still in employment
regardless of his actions. So would adopting Grayson’s approach be a better deterrent and therefore a better
form of retribution? Almost certainly, yes.
Why? As referenced a crime against the person has been committed and if we were to abide by the approach
mandated by Grayson then it is more than likely that we will be looking at a scenario of R v Suarez. In this
scenario the victim may receive some form of recompense for any undue pain and suffering caused by the
defendant and society or trial by peers will judge the actions as to how serious they were – i.e. if they fall into
the category of criminality.
How? Well, due to the reasons given and the fact that the offence satisfies both the actus reus and mens rea.
This combined with vast interest in high-profiled modern day sport and the proximity of attention the game
arouses the Crown Prosecution Service would have acted accordingly, just as it did in the John Terry – Anton
Ferdinand scenario which went to Southwark Magistrates Court. The media scrutiny was intense, possibly
because of the celebrity statuses concomitant to sportsmen and women, but his reality that a racially aggravated
assault was claimed by the victim that the case rightly went to Court.
111
Bond, D, BBC Sports Editor,http://www.bbc.co.uk/sport/0/football

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To uphold Grayson, cases have recently gone to Court where the act that has caused the victimharmhas been a
bite. In both cases and in one sporting case, incapacitation punishments have been administered. Now we are
hypothetically at the stage where the allegations have made the Court. What possible punishments, using case
precedents, would happen next, potentially? The very recent case of R v Wagner112
the 5 year prison sentence
was upheld on appeal. The fact that the case was refuted was because the defence deemed the sentence was
judged harsh. The bite was a part of the injuries inflicted because of the fight that broke out. Conversely, it was
the fact that the bite itself made the grading of offence more serious and why the severity of the punishment was
upheld. Case analysis depicted that “Whilst the sentence was a severe one, it could not properly be categorised
as wrong in principle or manifestly excessive.”113
This just goes to show that if, as Grayson believes that “the
law does not stop at the touchline” then offences like the one Mr Suarez committed are viewed as serious. This
case just goes to show that if an act takes place outside a pub – as the above case setting was – then the
punishment of 5 years is not “manifestly excessive”. Reverberating back to Grayson then this punishment would
be socially and morally correct because his actions were criminal and that his actions, or villainy, would have
been suitably punished. Another similar case with the same notion is R v Pyatt114 The punishment of 6 years was
questioned again due to its severity. The sentence on appeal was reduced by 25% because the appellant judge
felt the wound fell within category 2 offence and not a category 1 transgress ion. However, the appellant judge
did agree with the judge at first instance that “that the bite had amounted to the use of a weapon…[implying
that]…there was greater harm and higher culpability”115
One case that does go hand-in-hand with the theory where Corinthian values should be upheld in sport and that
villainy, if rendered criminal, should be punished is R v Johnson.116
The offender, playing in an amateur football
match, bit an opponent’s ear and was sentenced to 6 months incapacitation. Case analysis showed that the
appeal judges cited R v Gingell117
where, in the judges summing up held that, unlawful violence on the football
field needs discouraging as much as unlawful violence. The sentence made adequate allowance for the
mitigating factors and was correct in principle and extent. Grayson would have approved. His logic was
endorsed and advocated. Violence should not systematically be seen as a mitigating circumstance just because
the incident happened in the heat of play on a sports pitch. It is significant that the judges also made reference to
the case of R v Lloyd where the judge in that instance quoted affirmatively that “…sport does not have licence
112
[2013]EWCA Crim 529
113
Ibid paras 16-18
114
[2013]EWCA Crim 1203
115
Ibid
116
(1986)8 Cr App.R (S) 343
117
[1980]C.L.Y. 571

32 | P a g e
law
for thuggery…” An element upon which both judges agreed. From the three cases referred to above, the only
real contrast is where the incidents took place. Two happened in societal locations, the other in an organised
game. The obvious comparison is the act in question and the act of legislation it contravenes. The sentences are
contrasting in length, it is especially noteworthy that the sporting incident only held a 6 month judicial sentence,
but with reference to Grayson and his manifesto on punishing wrongdoers, the punishments acknowledge his
diplomacies of criminality on a sports pitch should not negate the law of the lands chastisements.
Admittedly there are no sports to my knowledge where biting is “legal” and forms parts of the rules. However,
some criminal actions are legal in sports and do form parts of the regulation within the activity. So, where do
you draw the line, is it even possible to do so if this is the case? The playing culture of sport has been looked
into by the courts. However, from the writers point of view, for this to be effective each case must be viewed
independently and not on past precedents. Each case scenario will be different and each different level of sport
will have to be assessed as will the sport itself. Citing the example of the hypothetical case above, biting is an
illegal act both on and off the sports pitch and that Mr Suarez has been cited before for this act when playing in
Holland, which does beg the question as to why no claims were made, especially when even those who conflict
Grayson’s theory have said that;
“Only where clear acts of force are used off-the-ball….should the criminal laws intervene if the internal
measures are seen as ineffectual against persistent offenders”118
The reality is that because an act constitutes a crime does not mean it has to be prosecuted as such. Indeed, the
role of the criminal law can be broadly summarised as focused around punishment (custodial or financial),
preventative measures and ensuring the protection of the public.119 The punishment factor is apparent due to the
nature of the offence and the act. You only have to compare this case with the three actual cases that went to
trial so see that they can be told in the same breath where custodial sentences were handed down. Secondly, it
will be seen to act as a preventative measure. Although through the autonomy of sport they can hand down
punishments, like the F.A did with regards to a 10 game ban, a 6 month prison sentence if we directly compare
Suarez to R v Johnson. The greater deterrent and visible punishment would be the latter even though due to the
nature and the level of the sport Mr Suarez plays, he would be hit harder from a fiscal sense by the Governing
body. Conversely, with the economic state of football, is a fine really a constraining measure of punishment?
118
119
Lines, K, Criminal LawChapter 10, (tbc) pg412

33 | P a g e
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Therefore it is of the writers opinion that following Grayson’s theory of punishing the villainy, even though in
the reality of the incident, the victim, Mr Ivanovic, accepted a written apology and did not wish to press charges
further, would be a just and plausible action for a heightened deterrent. The third and final reason to prosecute a
victim is to ensure the protection of the public. Surely, if he has got a previous banning order to his name for
another incident then he has a past indications of violence, why not take the matter out of the hands of those in
governance and punish himaccordingly, abiding with Grayson, in the criminal courts.
However, if this was to be the case then the courts would be overloaded with a greater workload of cases as in
each and every sport played across all levels of ability and skill, someone somewhere would commit an offence
which could amount to a prosecution. In turn this would lead to a greater prison population deemed
overcrowded. This would also put more pressure on the C.P.S to prosecute or at least investigate offences that
Judge Bolton in R v Evans referred to as “flabbergasted” regarding the C.P.S involvement in acts, which
although classed as criminal, occur commonly in sport. Below are two other examples (offences committed)
across various sports which are criminal but were suitably dealt with internally include;
Football – Paolo di Canio pushed the referee to the ground (Assault) and received an 11 match ban by
the F.A and fined £25’000
Rugby Union – Richard Nones was banned for 2 years fromthe sport for eye-gouging (Wounding with
intent) an opponent
Neither injury was ever classed as serious even though the victim suffered through the act of a criminal nature.
Yet there is one incident which both satisfies and goes against the grain of Grayson’s point. Duncan Ferguson,
of Glasgow Rangers F.C. was convicted of assault after being found guilty of head-butting John McStay of
Raith Rovers F.C. The incident occurred whilst the ball was in play, but not whilst the two players were
challenging for it. Although the victim received no serious injuries “…Ferguson was sentenced to three months
in prison. He also received a 12-match ban from the Scottish Football Association (S.F.A)…”120
On face value,
it seems a fair and just conclusion to the matter. There were however strong mitigating factors behind the
punishment. The length of the sentence reflects the fact that Ferguson was on probation for a previous offence of
violence and that his ban was subsequently overturned following a Judicial Review of the S.F.A's disciplinary
rules. This judgement swings more towards the principles of early theorists. The journal which commented on
120

34 | P a g e
law
the case and reflects on the aftermath of such a decision commented on its own findings as well as the courts
where they say that “…players cannot be regarded as exempt from the criminal law”121
The report suggested
that the governing bodies should be the primary place for dealing with any disputes where criminality acts
occur, but, if the violence does amount to criminality which an on-field sanction does not cover the crime
enacted then exterior, more superior bodies should become involved. In other words, the Lord Advocate
suggested forgetting the regulations that occur and applying common sense approaches. If the act is criminal,
then he who committed the act should be suitably punished, or at least tried in that jurisdiction. Directly reciting
the report itself;
“The Lord Advocate's instructions are common-sense guidelines to cover potentially volatile situations… if and
when an incident occurs on the pitch, the police should also take action”122
Another example occurring in football where there was a case of suitably punishing the defendant due the
severity of the victims injuries occurred a few years ago in another televised game. On February 23, 2008,
Arsenal played Birmingham in a Premier League football game. In the third minute of play, Birmingham's
Martin Taylor tackled Arsenal's Eduardo da Silva. In the vernacular of the game, the tackle was late, ill-judged
but most importantly done with no malice aforethought, Eduardo suffered a fractured left fibula and dislocated
ankle, potentially amounting to Wounding with Intent if the necessary mens rea can be established. In the
aftermath of the incident, Sepp Blatter, the President of F.I.F.A, football's world governing authority, called for
lifetime bans and criminal prosecutions of footballers guilty of dangerous tackling. Blatter's proposals as to
potential criminal liability were met with some scepticism.123 This would be very difficult to show if the tackle
was made honestly or even if the tackle was mistimed where no intention to harm was ostensible. In the above
example, this was shown to be the case as the F.A accepted the three match ban imposed through the red -card
the defendant was given. Likewise no criminal sanctions were ever imposed due to the lack of intent or purpose
in hurting the victim. Comparing this to Barnes there was no prior malice between the two showing a clear
fissure between the two cases. Instances like this are regrettable and inopportunely transpire but prosecuting
every person who makes a bad tackle when they misjudge something seems wholly unjust, which is where
Grayson’s theory becomes insipid. Cases like this may go to court but the lack of mens rea would mean no
suitable punishment would be handed down that would fit the criteria of a serious criminal delinquency. That
121
122
James, M & Gardiner, S, Touchlines andGuidelines; TheLordAdvocates response tosports fieldviolence,(1997), Crim LR, Para7
123
Samuel, M, Tackle that broke a leganddivideda nation, (2008),The Times, February28

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