Andrew Holt asks whether football clubs can seek compensation for players injured on international duty
The saga of Wayne Rooney's right foot has been something of a ridiculous soap opera. We were promised he would be recovered from the double fracture in his fourth metatarsal, then he wouldn't, then the seemingly final chapter was written on the eve of the start of the World Cup when he was given the thumbs up to go.
But two issues stand out in the whole farce from an insurance point of view.
First, if you believe the tabloids, Manchester United want the FA to promise them compensation if Rooney picks up another medical problem as a result of, what they view as him being rushed back into action too soon.
As all the suggestions coming from the England camp is that Sven wants to try Rooney out in the Swedish game on 20 June, or possibly even today's game versus Trinidad & Tobago. Is it possible and practical therefore for Manchester United to get compensation if Rooney is crocked again?
English clubs have long argued that the English Football Association should pay the wages of players who return injured from international duty until they are fit to play for their home teams.
Although this is perceived as a club v country issue, Helen Tilley, life and health divisional partner at Davies Lavery, says the FA is not in a position to insure the player in the first place.
"My concern is that the FA would not have an insurance interest in relation to Rooney as he is not its player, and therefore would not be able to obtain the suitable insurance for the player," she says.
Charles Meaden, director of sport at Heath Lambert disagrees, saying that clubs wouldn't allow players to go on international injury if there was no insurance. "The FA does cover players on international duty and clubs would insist on it when their players are playing for England. The issue is whether any underwriter would be willing to insure the player in the knowledge that his metatarsal is a major risk."
Roland Fox, underwriting partner at MAP, a specialist in football players' insurance says that the metatarsal issue will hinder any insurance of Rooney at this time. "No underwriter is likely to insure the metatarsal in Rooney's right foot during the World Cup. Any other injury claim that could have resulted from a weakened metatarsal will also be rigorously examined," he says.
Clubs normally have insurance policies for their players in relation to accident and sickness, which naturally involve top dollar cover while players themselves also have their own policies to cover themselves and their lifestyles.
To attempt to square the club v country insurance circle the international football governing body Fifa has set up a trial self-insurance scheme which seeks to compensate clubs if their players are injured.
So even if they tried, Manchester United would have little luck of getting any compensation. "Manchester United may have a very slim prospect of getting compensation from the FA, it all depends on the medical opinion at this stage on whether he is a risk to go back and play," says Tilley.
The conflict over medical opinion has coloured the waters over the nature of the risk. But as Fox states, from an underwriting perspective it is clear that Rooney is still a risk, therefore, it is unlikely Manchester United's insurers will also not pay out if he goes back to his club with an injury picked up during the World Cup.
"If Rooney goes back to Manchester United with an injury picked up in a match during the World Cup, insurers would say he was a risk and suffered from 'natural and foreseeable consequences' and they are then unlikely to pay his accident and sickness cover. It is the argument that he went back to playing too early," says Tilley
So in this scenario, Manchester United are stuffed. They would find it difficult to get compensation from the FA or their insurers if Rooney gets injured during the World Cup.
There is another insurance issue. Nike is naturally gutted by the Rooney injury. Having spent a fortune to sponsor him during the World Cup, they are now reluctant to promote their new boot as commentators have raised concerns that its design could be responsible for the poor state of Rooney's metatarsal. He broke his foot on the first occasion he was wearing the boot in the Chelsea v Manchester United fixture.
So, from a product liability perspective is Nike open to claims for injuries sustained while other footballers are wearing the boots?
James Shrimpton, an associate at Davies Lavery and specialist in personal injury, product liability and health and safety, is not convinced. "There would have to be shown a defective facet in the design in the boot under the Consumer Protection Act 1987 for there to be a claim," he says.
So could Joe Bloggs on Hackney Marshes wearing the Rooney boots be able to make a claim if he come a cropper? "A claimant will have to show causation in the injury. So there is the big hurdle to prove causation of the boots in any injury before a claim could be made. And that is big hurdle," says Shrimpton.
Meaden also says it is not on for Sunday league players to claim if they get injured wearing the Rooney boot. "I don't think there could possibly be a successful claim against Nike if an amateur player gets injured as a result of wearing the Nike boots, as there are too many things that would come into play, and it would be difficult to prove that an injury occurred as a direct result of the boot."
Although many commentators have not been slow to identify the problems of the design of the modern football boot and the similar metatarsal injuries suffered by Beckham, Owen and now Rooney. But Shrimpton says Nike still has a solid defence against any claims, aside from the difficulty of proving causation.
"If Nike can show that the science technology available at the time in developing the boots had been able to assess all the risks then that is a defence," he says.
Also, there is the question mark over whether the man on the street will be wearing exactly the same boots anyway. As reports suggest that Rooney's boots were custom made. "I suspect they are. As it is reported he had an input on the design of the boots," says Shrimpton. "So again there would be an issue there, as they would not be exactly the same boot available on commercial sale."
At the time of Rooney's injury, Nike denied it was down to the boot itself and this statement was supported by Rooney in an interview with MUTV.
Furthermore, Rooney's sponsorship deal with Nike is reputed to be worth £9m, so it is unlikely that Rooney is going to start causing problems of a claims nature for Nike. And all the publicity surrounding the injury can hardly have been harmful for Nike even with the negative tag associated with the boots.
One thing cannot be doubted, it will not just be Manchester United and insurers hoping that Rooney doesn't get injured in the World Cup.
Many millions of England fans will be hoping with bated breath that Rooney does not suffer an injury once he returns. It could be England's only chance of glory. IT