Two recent cases highlight contrasting approaches by claimants to proving the level of earnings they could have expected to receive as professional footballers, but a generous approach by the court to admitting such evidence in each case.
Mere weeks before contesting two of the most prestigious/lucrative matches in world football, two professional clubs found themselves in the altogether grittier battles of High Court case management. On 22 April 2021, Swansea City AFC succeeded in persuading Bourne J to permit expert evidence from an agent as to the Claimant’s potential earnings – sadly they could not repeat their success in the Championship playoff final, losing against Brentford. Just over two weeks later, on 6 May 2021, Manchester City FC failed to persuade Cavanagh J to exclude as inadmissible, among other things, factual witness statements on players’ earnings – their losing streak continued in the Champions League Final against Chelsea (albeit with the Premier League title to console themselves).
The nature of the issues before the respective judges demonstrates the uncertainty of litigants as to how best to present evidence of potential earnings in sports (and other) cases. The answer is little clearer as a result of these decisions.
TVZ v Manchester City Football Club Ltd  EWHC 1179 (QB)
This is a claim brought by a group of former youth players against Man City, alleging that the club is vicariously liable for acts of child abuse committed against them by one of the club’s scouts/coaches, Barry Bennell. Two investigations into Bennell’s actions (one statutory and one commissioned by the club) have concluded that Bennell abused the Claimants and others. A redress scheme was set up by the club to compensate victims, in which the Claimants declined to take part in favour of bringing the instant proceedings.
The court considered a number of applications brought by the parties, including the one considered here, namely that the evidence from two witnesses, Nick Harris and Keith Carter, “is factual evidence and is to take the form of witness statements already served.” The alternative analysis, advanced by the club, was that the documents were expert reports, for which the Claimants did not have permission.
The judge’s ultimate conclusion was that this was an issue which should be left for the trial judge to determine at the PTR, but as he expressed a very clear view that the evidence was admissible factual evidence, it is instructive to consider the details. The disputed evidence was as follows:
- Mr Harris is described in the judgment as a sportswriter, researcher and analyst, specialising in the business and finance of sport. His statement referred to and exhibited several documents in which research on footballers’ wages in various periods was set out.
- Mr Carter is an employment consultant. His statement provided information about the two pension schemes that existed in the relevant period for professional footballers.
Man City submitted that the statements were, in reality, expert reports, and, as such, could not be relied upon by the Claimants as leave had not been sought to adduce the evidence as expert evidence. The club pointed out that the witnesses held themselves out as having special expertise in football finance and employment matters. They were being paid for their evidence. Man City also pointed out that in otherwise very similar statements filed in other proceedings, these witnesses used language which was much more apt for an expert report. For example, Mr Harris referred to his statement as a “report” and referred to his “professional opinion“. The club suggested that these statements had been “tidied up” for the purposes of these proceedings so that they looked more like statements of fact, and so that they could avoid the need to seek leave to rely upon them as expert reports.
The reasons why the Claimants were chary of seeking permission to rely on the content of these statements as expert evidence was not discussed.
Having determined that the matter should be left to the trial judge, Cavanagh J said this :
“I should add, however, that if it had been necessary finally to determine the issue today, I would not have made an order which had the effect of preventing the Claimants from relying on these statements at trial. The starting point is that, if the Claimants succeed in their claims and succeed in establishing that they lost the chance of becoming a professional footballer, the judge will need to have some information about pay and pensions for professional footballers in the relevant period in order to assess damages. The material contained in the Harris and Carter statements is potentially very useful. In my judgment, for what it is worth, Mr Carter’s statement is not an expert report. It is simply a means of identifying the specialist pension schemes that were available for professional footballers at the relevant time, and a peg upon which to hang the inclusion in the trial bundle of documentation relating to these specialist pension schemes. The vast majority of Mr Harris’s statement is also factual, simply identifying and summarising the surveys which provide some information about footballers’ salaries. It makes some observations about the surveys, but most of these observations are ones which do not require specialist expertise. Rather, they are apparent on the face of the documents themselves. If and in so far as the statement sometimes strays into inappropriate expert comment, the judge will be well able to disregard such comment, if she considers it appropriate to do so.”
The PTR is scheduled for early August 2021 in advance of an 8-week trial beginning on 25 October 2021. The prejudice to the Claimants of being prevented from relying on this evidence at that stage would appear significant (albeit I am not aware of what other evidence of potential earnings will be before the court). The Claimants may be counting on this being a point in their favour at that stage. Notwithstanding that, the uncertainty appears to the outside observer to be somewhat unsatisfactory. This is all the more so if the matter could have been put on a different footing by gaining the court’s permission to rely on Messrs Harris and Carter as expert witnesses (and thereby gaining a mechanism to recover the fees that they had been paid). However, the Claimants’ approach is understandable given the risk of failing to get such permission; the chance of then being able to argue successfully that what had been advanced as experts’ reports are, in fact, witness statements would be slim.
They may, however, have been encouraged down that path had the following case been decided earlier.
Swansea City AFC v Owen  EWHC 1539 (QB)
This is a claim by the club’s former player for a negligent failure properly to treat an injury. It is alleged that his career as a goalkeeper was ended as a result, whereas but for the injury he would have had a lengthy career in leagues up to and including the Championship.
At the CCMC before Master Eastman the Claimant argued that he should be permitted to rely on quantum expert evidence from an accountant. This was permitted. Swansea argued that further expert evidence should be permitted from an expert in “football playing ability” and, rather than an accountant, a sports agent who could speak more accurately to the level of earnings that could be negotiated for particular players. The Master permitted the “ability” expert but denied permission for the agent. One issue was his fees (£30,000), but, colourfully, the Master went on to say:
“I am not sure whether that [sports agency] is frankly a proper area of expertise in any event. Their expertise is in disrupting football players and making them move around so that they can make more fees. … The idea that the judge can have a benefit from some wise old bird who has been involved in professional football on both sides, who can talk about the chances of people doing as well as they would hope to do in the professional world which, as we know, is as cut-throat as it comes, is I think of some value. I think that would help put the prospects of this gentleman in context.”
Swansea appealed and by the time of the hearing the Claimant had disclosed his accountancy report and the factual evidence on which it relied, which happened to be a witness statement from a sports agent, discussing the wages which he had negotiated for goalkeepers in the lower leagues. The club’s submission was that this was inferior to the expert evidence that it was proposing, which would come from an expert who had personal knowledge of the contract terms of 18 relevant goalkeepers.
Bourne J allowed the appeal, stating  to :
“…there will remain the question of how various ability levels would translate into salary levels. That question is one of fact, but that does not mean that expert opinion will not help to answer it. The variations in salary identified by Mr Letheren no doubt exist for various reasons. As was seen in the case of Smith v. Collett  EWHC 1962 (QB), different clubs in each division will pay different salaries and different players within each club will earn more or less.
…I have concluded that expert evidence is reasonably required. That is on the basis that a sports agent from professional experience – perhaps aided by research – will be able to provide insight into more precise salary expectations. With knowledge of what factors affect salary and what effect those factors have had in practice, the trial judge may be able to make better use of his or her findings about what factors actually apply to the claimant.
…The way in which the master expressed his conclusion also was not entirely satisfactory. Whilst his disparaging remark about their expertise being in causing disruption was probably just a flippant way of saying that their relevant area of expertise had not been clearly identified, it gave the wrong impression. It is true that sports agents sometimes get a bad press, but then so do judges.”
In making his decision, the learned judge had referred to guidance in the White Book and, in particular, the three-stage test in British Airways plc v Spencer  EWHC 2477 (Ch), namely:
- Is expert evidence necessary to decide an issue rather than merely helpful? If yes, it should be allowed;
- If it is not necessary, will it assist the judge in determining an issue? If it would assist but is not necessary, then the court should consider;
- If expert evidence on that issue was reasonably required to determine the proceedings, taking into account proportionality, the effect of a judgment either way on the parties and who will pay for it.
Taking into account that last factor, and at Swansea’s invitation, the Judge capped the sports agent’s fees at £12,500.
Should litigants in claims such as this have greater confidence that specialist expert evidence on football earnings will be permitted? The issue is similar to employment consultants in the broader sweep of personal injury and clinical negligence cases, permission for which is seldom granted. However, there are particular issues which arise in football/sports cases which are not of general application, namely commercial sensitivity and secrecy around wages.
The Supreme Court formulated a test for the admissibility of expert evidence in Kennedy v Cordia (Services)  UKSC 6 (§44) (a Scottish case, and so only of persuasive force to applications under the CPR):
“a skilled person can give factual evidence either by itself or in combination with opinion evidence. There are in our view four considerations which govern the admissibility of skilled evidence:
(i) whether the proposed skilled evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience;
(iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
All four considerations apply to opinion evidence, although, as we state below, when the first consideration is applied to opinion evidence the threshold is the necessity of such evidence. The four considerations also apply to skilled evidence of fact, where the skilled witness draws on the knowledge and experience of others rather than or in addition to personal observation or its equivalent.”
Consideration (iv) does not appear in the test applied by Bourne J and it must be open to question whether evidence from a sports agent is based on a reliable body of knowledge or experience in the way that underpins that of a medical or engineering expert (even without going so far as to ascribe to the view of the Master). The evidence being advanced in the Manchester City case appeared to have that quality, but whether experience of 18 goalkeeper’s contracts, as in the Swansea case, rises above the anecdotal may be doubted.
While Cavanagh J’s description of the nature of the evidence contained in the statements disputed before him as factual seems correct, it is also right that it would fall into the category of “skilled evidence of fact” described in Kennedy.
Notwithstanding doubts about the body of knowledge on which it is based, it seems clear that evidence of potential earnings is essential in claims such as this. That being the case it would seem better for that evidence to be provided by experts to whom the duties imposed by CPR Part 35 apply. Approaching matters in that way would offer certainty as to the body of evidence to be considered by the court at an appropriately early stage, rather than leaving it in doubt until the PTR. However, parties may need to be steered clearly in that direction by judicial guidance if they are to be relieved of the dilemma of whether to seek permission to rely on such evidence under Part 35.
Rory Badenoch acted for the Claimant in Swansea City AFC v Owen. He did not contribute to this article.