Today, the RFU has reportedly attributed to “initiation ceremonies” huge drop-offs in participation in the sport by university age players. According to the RFU, the reputation of initiations has led to up to 10,000 players leaving the sport between school age and university. Stories reported by the Times range from players having to fish dead rats out of buckets with their mouths, to the application of chilli powder to sensitive body parts, and excessive forced alcohol consumption.

Most universities and student unions already ban initiations per se. Yet the rituals remain widespread, often under the guise of “welcome drinks” events. The culture problem, and discouragement of participation, is concerning but should clubs, universities and governing bodies be concerned about more than that? The possibility of injury, distress or even death (thanks to potentially tortious or even criminal acts) is clear from the stories reported. So when does a culture problem become a legal problem?

This post outlines some of the factors clubs, teams, universities and indeed players themselves should be considering.

Civil claims

Under English law, damages will be awarded to a claimant who can show loss or harm as a result of the breach of a duty of care. It is well-established that such duties of care arise on the part of employers to employees (for example by failing to ensure a safe workplace), and the US has seen a number of successful claims against Universities specifically in relation to initiation ceremonies. For example, in 2011 a student sued his university for negligence, intentional infliction of emotional distress, creating a hostile educational environment and ignoring his reports of abusive hazing tactics at his fraternity.

English law also recognises the responsibility of employers for their employees through the imposition of secondary (or ‘vicarious’ liability) where negligent acts are carried out during the course of employment. As such, universities, clubs and potentially governing bodies are exposed to claims where coaches or (in the professional sporting context) other players carry out harmful acts as part of an initiation ceremony.

Employers of professional players also risk facing claims of discrimination or harassment under the Equality Act 2010 (for example forced consumption of alcohol which may discriminate against players of a particular religion), for constructive dismissal (for example, where a player argues that s/he was subjected to such degrading/offensive/humiliating behaviour that amounted to a fundamental breach of the employment contract or, alternatively, where that player has raised a grievance regarding the initiation which the employer has failed to deal with adequately). Linked to this is the importance of governing bodies and universities bearing in mind their roles in a disciplinary capacity where such acts are brought to their attention by the players. Both are likely to have the ability to impose sanctions for breach of the relevant codes or regulations by the teams / players in question.

Criminal claims

Where initiations involve physical acts whether or violence (such as kicking, punching or worse) or of a sexual nature, the possibility of criminal proceedings as well as civil claims arises. For example, under English law, the criminal act of assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force, and a battery occurs where where a person intentionally or recklessly applies unlawful force to another. A quick glance at the CPS’ charging standard for assault, battery, and assault occasioning actual bodily harm makes clear that many acts often dismissed as ‘harmless’ rites of passage may in fact be capable of amounting to criminal offences.

Consent?

Often the argument is raised that the participants in the ceremony have consented to the acts inflicted upon them.

On the criminal side, regardless of whether the victim consented, under English law, following the famous case of R v Brown, whilst it is possible to consent to assault, it is not legally possible to consent to actual or grievous bodily harm. Thus consent would not provide a defence to any initiation act resulting any injury which is “more than merely trifling or transient”.

Consent or voluntary assumption of risk may provide a wider defence to civil actions. However, this will generally apply where the claimant has full knowledge of the nature and extent of the risk and assumed the risk voluntarily and not due to compulsion by the defendant or external circumstances. It is not difficult to envisage scenarios in which an initiated player accepts the performance of a given act due to extreme ‘peer pressure’ and the extent to which this defence would be of use in initiation cases is therefore questionable.

Conclusions

Instilling culture change is often one of the greatest challenges governing bodies face, particularly in relation to breaking cyclical traditions such as initiation ceremonies which involve competitive aspect that encourages teams to dream up increasingly outrageous activities year-on-year. Governing bodies such as the RFU already work closely with student bodies and ‘influencers’ to engrain policies and educate players on these issues. For a governing body, the news that substantial numbers of players are being deterred from participation due to a culture of potentially criminal or tortious acts linked to their sport is concerning news indeed. Not only does it damage the governing body’s fundamental ability to promote and further its sport but, as can be seen from the above, it potentially exposes clubs, players and the governing body itself to various legal risks, even where initiations are not necessarily intended to pose any risk to the player(s).