The triggering event in terms of civil liability

Although the Sports Code contains a number of provisions for the organizers of sports competitions, the fact remains that ordinary law still applies. It is in this sense that it seemed appropriate to highlight certain aspects of civil law applied to sport.

In order to best study civil liability in sport, I will focus on each of its essential elements.

Today, it is a question of the generating event. As the name suggests, the fact must generate damage. To establish civil, delictual or contractual liability, it is therefore necessary to provide proof of an act that caused or participated in the commission of damage. This results in the proof of the three elements of civil liability:

- Made generator

- Harm (=harm)

- Causal link between the causative event and the damage (in other words, it is the causative event that caused the damage).

A distinction should be made according to whether one is on contractual or criminal ground. In the criminal field, that is to say in the absence of any contractual relationship between the author and the victim of the damage, the Civil Code distinguishes 3 types of generating events:

- the personal fact, the basis of personal responsibility articles 1382 and 1383.

- the act of others, the basis of vicarious liability of article 1384 paragraph 1.

- the fact of things, the foundation of responsibility for the fact of things of article 1384 paragraph 1.

Apart from this tripartite distinction, the Civil Code does not give a precise definition of the event giving rise to responsibility. Article 1382 of the Civil Code states that “any act of man, which causes damage to others, obliges the person through whose fault he succeeded to repair it”. When the damage results from a desire to harm others, it is a civil offense. Article 1240 of the new Code of Civil Procedure states, in addition, that “everyone is responsible for the damage he has caused not only by his act, but also by his negligence or by his recklessness”.

When it is unintentional, it is a near misdemeanor. These two articles thus demonstrate that the causative event can be both faulty and non-faulty. It does not matter what the intention is hidden behind this fact when it causes harm to others. Finally, it should be noted that in civil matters, compensation for the harm suffered by the victim is not proportionate to the seriousness of the offence, unlike in criminal matters. Let's look at this through two examples:

First, a sports club may be held liable in tort against a third party, not only because of its own fault, but also because of an installation or equipment that belongs to it or of which it is the guardian.

The second, a sports club may be subject to criminal liability due to a fault committed by a sports educator acting in the capacity of agent of the club. Indeed, under article 1242 paragraph 5: “Masters and principals (are jointly and severally liable) for the damage caused by their servants and servants in the functions in which they employed them”. As a result, there is a rise in no-fault liability regimes, especially in the field of vicarious liability. Therefore, since 2001, the Court of Cassation has considered that the full liability of parents for damage caused by their minor child living with them is not subject to a fault on the part of the child (Civ. 2e 10/05/2001). As for the contractual field, a distinction is made between two types of generating events that may involve the contractual liability of an individual, under article 1147 of the Civil Code: Poor performance of the obligation.

Total or partial non-performance of the obligation

Contractual liability may be incurred when there is a legal relationship between the author and the victim of the damage.

Example: Damage is caused to a member during the club's activity (training or competition), the member may incur the contractual liability of the club insofar as club membership is legally considered to be a contract. Can one engage the contractual liability of one's counterparty for a failure to perform an ancillary obligation (e.g. the obligation to provide information)?

Yes, any obligation contained in the contract may incur the liability of the debtor of the contract if he performed it incorrectly or did not perform it at all. Thus, it can be both the main obligation (e.g.: PSG had the main obligation to pay 11 million euros as part of the purchase of Verratti last summer) as well as an accessory obligation or even an express or tacit obligation. These tacit obligations were discovered late and include, in particular, the obligation to inform and the obligation to safety. It should be noted that the obligation to provide information and the obligation to provide security are the two main obligations imposed on the organizer. The latter, although considered to be an obligation of means in theory, is appreciated as an obligation of means reinforced by case law. The distinction obligation of means/obligation of result: this distinction is crucial in that it changes the burden of proof, i.e. that the proof will be provided by the creditor as well as by the debtor depending on whether one is faced with an obligation of means or an obligation of result. Indeed, the obligation of means consists in an obligation for the debtor to do everything in his power to perform the obligation. In the event of non-performance of such an obligation, the obligee must prove that the debtor did not use all the means at his disposal to perform his obligation. Proof that will be difficult to provide.

As for the obligation of result, it obliges its debtor to achieve a result. Thus, if this result is not achieved, non-performance of the obligation is presumed. It will therefore be up to the debtor to prove that he has properly performed his obligation.

Source: Legavox.fr [/column]