Proposal: Establishment of a “Compensation and other Comprehensive Support System for Sports Accident Victims (Provisional Title)”
I. Background – The Needs for Consideration of Sports Accident Compensation and Awareness of the Issue
The Basic Act on Sports enacted in 2011 states the so-called “right to sports” (Preamble, Article 2 Paragraph 1), and stipulates that sports shall be promoted so as to maintain and promote the physical and mental health and ensure the safety of those who engage in sports. (Article 2 Paragraph 4), that sport organizations shall endeavor to ensure safety (Article 5 Paragraph 1), and that the national government and local governments shall endeavor to prevent sport accidents (Article 14).
In addition, one of the principles of the Sport Basic Plan of the 3rd term established in March 2022 is to make sport “accessible to all,” for which a safe and secure environment for sport is essential.
From these perspectives, the government and sport organizations have taken various measures to ensure safe sports. At the same time, however, there are still major issues in dealing with sport accidents.
In Japan, these are the following compensation systems for sport accident:
“Sport Safety Insurance”, “Disaster Mutual Aid System”, “Personal Accident Insurance for Students Pursuing Education and Research”, “sport organizations’ own financial support (compensation) system”, “private insurance”, and claims for damages by victims of sport accidents (hereinafter called “Victims”).
However, these current compensation systems are insufficient to meet the needs of Victims. Especially in the case of serious sport accidents, these current systems impose unbalanced economic and mental burdens and sacrifices on Victims, so these are unbalances between promoting sports and ensuring a safe and secure environment for sports.
In light of this situation, the Japan Sports Law Association has repeatedly discussed and considered “How compensation for sport accidents should be” at the Research Committee for Sports Accident Cases, symposiums, academic conferences, etc.
As a result, from the perspective of ensuring a safe and secure environment for sports, we have confirmed that sport accidents must be avoided as much as possible, and that measures must be taken to prevent and minimize the spread of damage if unfortunately, sport accident happened, and that appropriate compensation is essential for damage that still remains unrecovered.
Based on the recognition that through a series of such efforts, we should aim to realize a safe and secure environment in which people can enjoy sports, the Japan Sports Law Association make a proposal to the national government (Japan Sports Agency) and other related organizations that Establishment of a “Compensation and Other Comprehensive Support System for Sports Accident Victims (Provisional Title)”.
Ⅱ. Issues with the Current System
1） Current Compensation System for Sport Accident
The current compensation system for sport accidents is a patchwork because each different systems exit for schools, universities, and community sports.
For example, the Disaster Mutual Aid System operated by Japan Sport Council provides up to 40 million yen for sport accidents under the management of a school up to high school.
On the other hand, for sport accidents at universities, Personal Accident Insurance for Students Pursuing Education and Research operated by Japan Educational Exchanges and Services provides up to 15 million yen for sport accidents during educational and research activities.
In contrast, for community sports, the Sports Safety Insurance provided by the Sports Safety Association is widely used.
This insurance covers sport activities by amateur groups of more than 4 members (excluding activities under the management of the school), and up to 46.5 million yen will be provided.
In addition, some sport organizations have established their own systems. For example, the Japan Rugby Football Union has a relief money system that provides up to 1.5 million yen for injuries and 2 million yen for deaths.
All Japan Judo Federation has also a relief money system that provides 2 million yen for death or permanent disability, as well as a compensation system that provides 20 million yen for disability at the 1st to 3rd levels.
In addition to these, there are private insurances (accident insurance and liability insurance), whose coverage depends on the insurance product. Among these, accident insurance often does not cover all the damages incurred by Victims, and the number of insured parties is believed to be small.
Thus, even for the same sport accident, there are differences in the coverage available to Victims depending on whether the accident occurred in schools, universities, and as well as the type of sport and each private insurance policy.
2） Damages for sport accident (court cases, etc.)
Among sports accidents under school management that have been settled through courts are the following.
A case in which damages of approximately 300 million yen were awarded for a lightning accident during a high school soccer tournament (Estimated amount of damages: 329,589,928 yen; Awarded amount: 275,321,123 yen; Takamatsu High Court Judgement, 17 September 2008).
The case in which the amount of compensation exceeded 100 million yen was that of a fall accident from a bar at a high school gymnastics club (Estimated amount of damages evaluated: 210,792,529 yen; awarded amount : 173,092,529 yen; Osaka High Court Judgement, 15 December 2017), that of fall accident during a cavalry battle at high school sport festival (Estimated amount damages: 234,224,164 yen; awarded amount : 182,674,164 yen; Fukuoka District Court Judgement, 3 March 2015), and that of an accident caused by throwing by a classmate at a high school Judo club (Estimated amount of damaged: 222,481,462 yen; awarded amount : 159,610,755 yen; Tokyo High Court Judgement, 3 July 2013). It should be noted that the amount of compensation for the accident under the control of the school is the amount after deducting the amount provided by the Disaster Mutual Aid System.
In the case of community sport, there was an accident caused by throwing by a judo instructor at a judo club (Estimated and awarded amount of damages awarded: 212,516,349 yen; Nagano District Court Matsumoto Branch Judgement, 16 March 2011).
In the case of university-sport, approximately 97 million yen was awarded for a tackle accident in rugby (Estimated amount of damages: 161,774,213 yen/40% negligence off-set; Tokyo District Court, 3 December 2014).
Thus, in court related to sport accidents, especially in cases where a particularly severe level of permanent disability is left, the amount of damages awarded far exceeds the maximum amount of compensation under the current compensation system.
3） Financial burden of serious injury accident
In principle, all current compensation systems are voluntary.
However, the coverage rate for the Disaster Mutual Aid System is extremely high at 99.4%, and this system has played an important role in providing compensation for school accidents.
In other areas, the issue remains to improve the insurance coverage rate. Even if they are insured, as mentioned above, the maximum amount of compensation for sport accidents is 46.5 million yen for Sport Safety Insurance (accident insurance) and 40 million yen for Disaster Mutual Aid System, which is not sufficient compensation for cases such as severe disabilities.
On the other hand, the benefit provided by the national social insurance system is also not sufficient, considering the current situation of various expenses arising from disabilities in addition to the usual living expenses.
Therefore, Victims often claim damages against others based on one’s negligence, but in some cases, the Victims are forced to give up on their claims out of fear of secondary damage such as conflict between the parties, destruction of relationships, or disruption of the community, and in other cases, they are not compensated on the grounds of own-risk（self-responsibility）.
In the case of using the court system to make a damage claim, Victims bear the burden of proof regarding the facts, negligence, and damages, so the hurdle for the claim to be approved is high. Even if legal responsibility to compensate for damages is accepted, the Victim may not be able to receive sufficient compensation due to the negligence offset.
Furthermore, if the offending party does not have the financial resources, Victims must bear their own damages effectively.
In addition, it often takes a huge amount of time and money to claim and resolve disputes, which is expected to increase the financial burden on Victims.
4） Bad influence to symptoms of Victim due to delay in compensation
Delay in compensation may prevent Victims from receiving appropriate treatment and rehabilitation, thereby worsening their condition, and increasing the damage such as higher medical and nursing care costs in the future. Especially for spinal cord and cervical cord injuries, etc., appropriate treatment at an early stage after the accident is considered the key to symptom improvement.
5） Isolation from the community
After sport accident, Victims and their families are forced to live care-centered lives, quit their jobs to provide care, or file lawsuits to avoid financial hardship.
Especially, in case of severe disease that requires 24-hour constant support, not only Victims but also their families will spend all their time to care for the Victims and will be disconnected from the community and the workplace. that they had previously had.
This isolation due to care and leaving one’s own job is a major issue faced by Victims.
Furthermore, claims for compensation (including lawsuits) against concerned parties will create an adversarial relationship between the parties and deepen the isolation of Victims. Such a confrontational structure will also be an obstacle to the healthy development of the sport community.
6） Burden of investigating the cause of the sport accidents
Under the current system, the investigation of the cause of sport accidents imposes a psychological burden on the concerned parties.
That is to say, the concerned parties may not actively cooperate in the investigation of the cause of a sport accident, for example, by not disclosing information that is detrimental to them, because they have the risk of being held liable for the sport accident.
This attitude not only makes it difficult to determine the cause of the accident but also hurts Victims and may cause emotional entanglement and the breakdown of the sport community, including human relationships.
7） Repeated Serious accidents
12 years have passed since the establishment of The Basic Act on Sports, which states, the “right to sport” and “retention and promotion of mental and physical health and safety,” yet similar sport accidents that cause serious consequences such as death or severe injury are still being repeated every year.
By the way, the Ministry of Education, Culture, Sports, Science and Technology (MEXT) notified the “Guidelines for School Accident Response” in 2016, and some progress has been made in investigating the causes of sport accidents at schools.
However, it is still difficult to say that effective accident prevention measures based on sport accident investigation, analysis, consolidation, and disclosure of accident information have been taken.
Incidentally, there were 421 deaths and 156 serious disability accidents (grades 1-3) in the 10 years from 2012 to 2021, with the number of school accidents remaining unchanged from year to year.
Ⅲ. Proposal: Establishment of a “Compensation and Other Comprehensive Support System for Sports Accident Victims (Provisional Title)”1）
In order to resolve the issues mentioned in Ⅱ above, the Japan Sports Law Association requests the national government (Japan Sports Agency) and other related organizations to consider establishing a ” Compensation and Other Comprehensive Support System for Sports Accident Victims (Provisional Title)”）” which consists of the following 7 points.
① Prompt relief for Victims: Quick support measures should be provided to victims, and necessary compensation should be promptly provided.
② Avoidance of overburden for the concerned parties: Fair sharing of damages caused by the accident should be made in order to alleviate the financial and mental burden faced by the concerned parties.
③ Avoidance of conflict between the concerned parties: To avoid adversarial relationships regarding civil liability and to create an environment in which the parties can cooperate in investigating the cause of the accident.
④ Investigation and determination of the cause of the accident: In the event of certain serious accidents, a third-party investigative organization should investigate the cause of such accidents and inquire into the truth of the matter.
⑤ Accident prevention measures that are close to Victims and put them centered: To place importance on the opinions and voices of Victims, and to actively involve them in the formulation and implementation of accident prevention measures.
⑥Cooperation with research institutions: Establish cooperative relationships with research institutions to share and utilize research and information related to accident prevention measures and support for Victims.
⑦ Cooperation with communities of Victims: Establish a support system to respond to the voices and needs of Victims through close cooperation with communities of Victims.
The establishment of a comprehensive support system for sport accident compensation based on the above framework will enable simple and prompt relief for Victims, support for Victims from a comprehensive aspect, and cooperative investigation of the causes of sport accidents by the concerned parties, leading to effective and substantial accident prevention, and ultimately to create a safe and secure environment for the sport of citizens and This will lead to improving the problems of the current system.
In addition, the “Comprehensive Support System Center for Sports Accident Victims (provisional name)” (hereinafter called “Center”) should be established as an organization that will be responsible for the comprehensive support system.
The Center will implement uniform and unified compensation, investigation of causes of the accident, and support for Victims, and then that will provide a mechanism whereby the above ①～⑦ are interconnected and each unction organically.
In this way, we aim to realize the well-being of the athletes, while standing on the value of sport granting solidarity, respect, and fraternity.
Ⅳ. Key Points of the “Compensation and Other Comprehensive Support System” to solve issues.
1） Simple and Prompt relief for Victims
Under this system, certain benefits are provided to those who have suffered certain serious injuries as a result of an accident, regardless of the fault of the parties in the accident. Needless to say, prompt compensation is extremely important for seriously injured Victims.
In particular, for spinal cord and cervical cord injuries, treatment within 3 to 6 months after the accident is considered the key to symptom improvement, and it is essential to improve an environment in which they can concentrate on rehabilitation during that time and to provide effective support for their return to society.
In addition, the realization of symptom improvement through early treatment will expand the options for social participation for Victims, and on the other hand, it will lead to a reduction in medical and nursing care costs in the future.
2） Claims by Victims and Avoidance of conflict between the concerned parties
Under this system, Victims shall claim directly to the Center. Negligent parties will be exempted from liability for damages based on the same cause to the extent of the benefit amount, similar to the Industrial Accident Compensation Insurance System.
By avoiding conflicts within the community overcompensation, it will be easier for the offending party to respond to the accident actively, thereby reducing the emotional burden on both parties.
In this way, the destruction of human relationships caused by accidents can be avoided, and an environment can be created in which the parties and those related can face accidents with mutual respect and cooperation.
3） Uniform and unified system operation
Until now, multiple compensation systems for sports accidents have coexisted like a patchwork. However, by establishing a uniform and unified compensation system for sport accidents, information on accidents will be collected and accumulated, and efficient analysis and research on the causes of accidents will be promoted, aiming for a system design that will lead to substantial prevention.
New Zealand, for example, has adopted this model under its national compensation system and has developed various programs to prevent accidents. Thus, the establishment of the Center that achieves uniform and unified processing is highly significant for building an organic cycle of information aggregation, analytical research, investigation of causes, and prevention of recurrence.
4） Sport Accident Investigation Committee
Under this system, the Center will be responsible for compensation (benefits) to Victims, support, accident investigation, analysis, research on accident prevention, and recommendations comprehensively and integrally. Establishing the “Sport Accident Investigation Committee (provisional name)” and. In the event of certain serious injury accidents, this committee will conduct hearings and submit a report to the Center within a certain period of time.
In addition, we will ensure that the preservation of evidence in this investigation is not intended to hold anyone accountable, but rather to ensure the safety of the community by preventing recurrence based on an accurate investigation of the cause of the accident.
5） Building a Support Network
After sport accidents, Victims and their families face a variety of difficulties, such as care-centered lifestyles and disconnecting from work, and lawsuits to avoid financial hardship.
In addition, under these circumstances, Victims are forced to leave their former organizations and sport communities.
In order to deal with such serious secondary damage that occurs after the accident, a support network shall be established to play the role of peer support from the perspective of the same victims, and the following specific support and other measures will be implemented.
(1) To provide psychological support to the Victims and their families by maintaining the relationships in the sport communities.
(2) Information sharing on medical and welfare systems to support social reintegration, schooling, and employment.
(3) Accident prevention measures through collaboration between Victims and sport organizations.
V. Issues to be considered in the future.
1） Cost sharing to maintain a sense of fairness
Since this system is intended to provide relief to Victims based on compensation regardless of whether or not the party is at fault, it is necessary to consider how to distribute the costs to victims in order to maintain a sense of fairness.
For example, even if the costs of sport accidents are distributed among a certain community, the degree of risk is different by each sport, and the implementation of a merit system, etc., should be considered.
While it is reasonable to distribute this cost among the community for accidents caused by acts that are less blameworthy, on the other hand, it is not fair and unreasonable from the view of moral hazard to have others bear the cost even when the perpetrator had intentional or malicious intent.
Therefore, it is necessary to consider designing a system that the Center allows to reimburse to the perpetrator in specific cases.
2） Scope of this System and Utilization of Current Systems
From the viewpoint of cost and performance, such as the benefit principle, avoidance of moral hazard, and reduction of the burden on national finances, careful consideration is required regarding the scope of accidents covered by this system, the amount of compensation, and other factors. For example, the coverage of this system could be limited to accidents that result in a certain level of permanent disability.
While considering the appropriate amount of compensation based on the level of disability, it is also necessary to consider the implementation of a temporary payment that would enable prompt compensation for Victims.
In addition to these, it is necessary to consider the comprehensiveness of the system (whether or not to include school accidents, company sports, top athletes, recreational, and professional sports), as well as the criteria for evaluating risk by each sport (how risk should be evaluated martial arts, contact sports, non-contact sports, and other sports events).
Furthermore, in establishing this system, it is necessary to consider expanding, modifying, or collaborating with current systems, such as the Disaster Mutual Aid System, Sports Safety Insurance, and accident insurance by current private insurance companies.
Ⅵ. Summary （Responsibilities of the national and local governments, sports organizations, etc. regarding accident compensation）
The Basic Law on Sport stipulates that “retention and promotion of mental and physical health and safety” of those who play sports and that the national government and local governments are obligated to make efforts to “prevent sports accidents, etc.”.
On the other hand, there is no explicit provision about compensation for sport accidents, and the cost burden of sport accidents has conventionally been handled based on the concept of own risk （self-responsibility）.
However, in order to realize a safe and secure environment for sport that does not impose financial and mental burdens and sacrifices on athletes and concerned parties in accidents, “accident prevention” and “accident compensation” need to be developed in a dual role each other.
From this perspective, it is reasonable to conclude the government and sports organizations that promote sports have certain responsibilities regarding not only “accident prevention” but also “accident compensation” (refer to Article 3-5 of the Basic Law on Sport).
Further discussion and consideration of the responsibilities concerning such “accident compensation” are required.
The government and sports organizations should take the lead in strengthening safety measures and risk management, providing appropriate guidance and education, improving facilities, and, in addition, providing appropriate compensation and support for victims of unfortunate accidents. By doing so, the purpose of the Basic Law on Sports, which states the “right to sports” and the “maintenance and promotion of mental and physical health and safety,” could be carried out.