254 t h e c o m p a r a t i v e e v i d e n c e : c a s e r e s p o n s e s

Editors’ comparative comments

The instant case bears a strong analogy to the famous Meroni decision which heralded Italy’s ‘recent revolution’ (above chapter 5) on the recoverability of pure economic loss. The financial losses of a sports club resulting from the death of its star player throw into relief the complexity of this subject. The great majority of countries would not award compensation on these facts. True, the claim for compensation is not necessarily excluded in principle in Belgium, France, Greece, Italy and Spain, yet it is clear there is little chance of an award since the alleged damages of the club will probably be regarded as too speculative or hypothetical. However, in France, it might be possible to use the perte d’une chance concept in order to award at least partial compensation, though this amount would not be designed to fully compensate the All-Stars for their drop in league standings.

The causal link will certainly be difficult to prove, not only in Meroni’s native land, but in Scotland as well. The Scottish reporter argues that the All-Stars may well fail to establish even a ‘but for’ causal relationship between the tortious act and the alleged financial damage, since no one can be certain that but for the absence of the star player, the team would have been in a better position than fourth place and hence better off financially. A fortiori he would fail, using the standards of ‘legal’ causation, to show the negligence was the direct, proximate or dominant cause of the loss, considering all the imponderables of the game.

In the rest of Europe, the forecast is even clearer. The claim will be rejected in principle in Germany and Portugal because the infringement of the club’s contractual relationship with its star is not regarded as an invasion of a protected ‘absolute right’. The team’s contract with him has no ‘external effect’, the Portuguese reporter explains, because a contract is only a relative right and negligent ‘interference’ with such a right is not ‘unlawful’. The same outcome is also predicted in Finland, Sweden and Austria, simply because of exclusionary causal doctrines, already discussed in the earlier cases, which preclude compensating injured third parties.