Dirty tackle? Or fair comment? You be the judge

Why do some football clubs resort to banning reporters when they don’t care for their reports? Probably because legal precedent was established nearly 120 years ago that sportswriters’ opinions on a match do not offer a chance for a juicy libel action, as ANTON RIPPON writes

Even in this increasingly litigious world, it isn’t easy to imagine a Premier League football club deciding to sue a newspaper for libel on the grounds that criticism of the club’s style of play might adversely affect the number of people prepared to pay to watch its matches.

“Dirty” Newton Heath, pictured in the mid-1890s

Even in this era of rampant commercialism, when Chelsea’s website offers the image rights of individual players as “brand ambassadors” to potential commercial partners it is inconceivable that the London club would have called in their lawyers when in a Sunday Mirror piece in November 2009, Michael Calvin wrote: “Chelsea, like Don Revie’s Dirty Leeds, are in danger of being undermined by their truculence.”

Come to think of it, Dirty Leeds never sued in the 1970s, though they complained long and hard about their hard-won hard reputation.

So it is something of a surprise to come across a case in which the predecessors of Manchester United took a newspaper to court, alleging harm to their reputation, and therefore income, after being branded, well, in effect, dirty.

On October 14, 1893, Newton Heath – the name change was still nine years away – entertained West Bromwich Albion in a First Division match (for anyone who doesn’t remember life before the Premier League, that was the top flight in those days).

The game took place at Newton Heath’s newly opened Bank Street ground in Clayton where matches were played to a backdrop of billowing factory chimneys and chemical works. Queen Victoria was in the final decade of her 60 glorious years, William Ewart Gladstone was her Prime Minister, and across the Pennines, in Featherstone, troops had recently fired on locked-out coal miners, killing two.

Newton Heath won the match, 4-1, but overall it was a desperately poor season for the Heathens. At the end of it they were relegated after losing a “test match” – a sort of Victorian play-off – to Liverpool at Ewood Park.

On the Monday following the Heathens’ defeat of West Brom, football reporter William Jephcott wrote in the Birmingham Gazette: “It was not a football match, it was simple brutality, and if these are to be the tactics Newton Heath are compelled to adopt to win their matches, the sooner the Football Association deal severely with them the better it will be for the game generally.”

Jephcott, whose son, Claude, would one day star on the wing for West Brom before becoming chairman at The Hawthorns, spared readers no details. A Newton Heath forward “was mean enough” to kick Albion goalkeeper, Joe Reader, “on the ankle even after the ball was in the net”; George Perrins “kicked Geddes in the spine of the back, raising a lump as big as a duck-egg”; and John Peden, recently signed from the Belfast club, Linfield, “was guilty of some dirty tricks”.

Wrote Jephcott: “I notice that next week Newton Heath have to play Burnley, and if they both play in their ordinary style it will perhaps create an extra run of business for the undertakers.”

Newton Heath’s directors were furious. And so in March 1894, at Manchester Assizes before Mr Justice Day and a “special jury”, presumably vetted to weed out Newton Heath supporters (and probably also those of Ardwick, the club that was about to change its name to Manchester City), an action for libel was brought.

A clipping of a contemporary newspaper court report when Newton Heath sued a football reporter

For the plaintiffs, Mr Shee QC explained that his clients played in the First Division of the Football League and that contained 16 of the best football clubs in the country. He said that it had become so noted that Newton Heath FC was in the First Division that the fact tended to draw spectators and increase receipts (no mention was made of the fact that the Heathens looked likely to finish rock bottom and might be relegated). Therefore it was of considerable importance that the players should not be accused of improper play.

For the defendants, Mr Gully QC said that there was no libel against the company that employed the football players.

The judge intervened. He could not see where the football club was going with this. It wasn’t an action to recover damages as if Newton Heath dealt in commercial transactions.

Shee’s assistant, Mr Bradbury, argued that it was disparaging to the company. The judge asked: “But do you put it on a commercial basis?”

Bradbury told the court: “We don’t say that it is a company to make profits, but we have to pay expenses, and pay our officers and players. And if we were to be struck out of the Football Association and the Football League, then our matches would not be so important … so many people would not come to see our play.”

Among witnesses called were the Newton Heath secretary, Alfred Albutt, who thought that the match was “fairly ordinary”, although under cross-examination he admitted that three players had been suspended after a game at Derby and that the trio had come in for criticism for rough play from the Derby newspapers.

The Heathens’ Jack Peden – “guilty of some dirty tricks”.

JH Strawson, who had refereed the match against West Brom, considered the game had been played in a fair and sportsmanlike manner, as did EA Davis, sub-editor of the Manchester Evening News. Reporters Henry Renshaw, Thomas Horgan and Thomas Axon also saw nothing wrong, and the Rev B Reid, rector of St Luke’s, Miles Platting, said that he had been disappointed and thought it a rather tame game.

Mr Gully, for the defence, said that it was the first time that he had ever heard of a company formed for the purpose of playing a popular game coming forward as a trading company claiming damages for the interference with business caused by the appearance of an adverse report.

As for Jephcott’s remark that a Newton Heath match might result in extra work for undertakers, well, the announcement that a man would drop from a balloon, dive from a great height into 6ft of water, or be wheeled across a rope 100ft high would all attract a large crowd. Therefore, if the defendants announced that there would be more work for undertakers, then attendances at Newton Heath’s matches would actually increase.

The Birmingham Gazette called several Albion players, each of whom agreed that they had been roughly treated. Jephcott himself stood by everything he had written.

The judge said that he could see no charges against the club, only against its players for whom it could not ultimately be held responsible. There was no attack on the football club as a company.

In light of that, when the jury found in favour of the plaintiffs, it was perhaps no surprise that the judge awarded Newton Heath just one farthing, a derisory one-quarter of an old penny, in damages, but no costs.

On March 9, 1894, the Dart weekly publication commented: “The Birmingham Gazette has rendered a service to the football world and to newspaper reporters by its defence of the action raised by the Newton Heath Football Club … as a result it is improbable that any football club will venture to imitate Newton Heath.”

And neither have they. Not even Dirty Leeds.

Footnote: Founded as a weekly publication in 1741, the Birmingham Gazette moved to daily production in 1862, and was absorbed by the Birmingham Post in 1956.


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