Mark Branagan

Boiling Point? – Liabilities of employers in the sports industry

Mark Branagan

23 January 2014

Work Health and Safety

Recent heatwave conditions during the Australian Open in Melbourne exposed tensions between the conduct of popular sporting events and employer’s legal obligations under workplace health and safety (WHS) legislation.

As Victoria sweltered through four days of temperatures over 40°C during the first week of its Grand Slam, serious and legitimate concerns were raised about the dangers of sunstroke and other heat-related illnesses faced by those engaged in the Open. The relentless sun was felt by all, whether as employees of Tennis Australia (TA) (such as umpires, linesmen, ball boys, other courtside officials and administrators), contractors (merchandising, catering services, broadcasters, media), participants or spectators. Despite a public outcry about the impossibly oppressive conditions, TA and some of the players defied the wilting masses by insisting that the extreme heat was merely part of the game and a test of the players’ peak fitness and match conditioning.


While it may well be the case that supremely finely-tuned athletes, such as the world’s leading tennis players, can absorb hours and days of punishing physical exertion in sweltering conditions, the same does not necessarily apply to the average person engaged or employed to work during the tournament. So what is the legal situation?


In assessing the potential legal ramifications, it is worth bearing in mind that Federal WHS law (and Victoria’s very similar legislation) requires employers or persons conducting a business or undertaking (PCBU) not to expose employees, contractors and third parties to risk of illness or injury through the operation of that business or enterprise, so far as is reasonably practicable. It is a common mistake for employers or PCBUs to overlook the fact that their obligation is to ensure that there is no exposure to risk of illness or injury. And if an employer or PCBU cannot eliminate such risks it must attempt to reduce them so far as is reasonably practicable in the circumstances.


Melbourne’s heatwave threat finally passed after four days, fortunately with little or no negative physical reaction to the conditions. However the risk of exposure to extreme climatic conditions was (and is) real.


The impact of heatstroke can be sudden and severe, leading in extreme cases to death within a short period of time. A tragic example of this occurred in the Trooper Lawrence Case, a 2007 prosecution in the Federal Court of Australia. Trooper Lawrence, a private in the Australia Defence Force died from the effects of heat stroke while undertaking a Corporal promotion training course at the notorious Mount Bundey training camp in the Northern Territory. In extreme heat and humidity of the wet season, Trooper Lawrence became severely affected by heat stroke while carrying out a training exercise. With insufficient time to assimilate to the stifling conditions, limited hydration, inadequate shelter, diagnosis, treatment, access to medical assistance and transport from the training camp, he died within a few hours of the onset of symptoms. The young man was 25 years of age, at his physical peak and yet completely overwhelmed by heat stroke.


When obligations under WHS laws meet the expectation to present high-profile sporting events regardless of the conditions, there is scope for conflict. This particularly the case where there is huge commercial, political and public pressure to allow the show to go on. However, basic legal liability will haunt employers where they are aware of risks to employees, participants or third parties and fail to take adequate action.


In 2012 a class action was filed in the United States on behalf of 4,500 former gridiron footballers against the National Football League (NFL). The former players allege that they were exposed to brain injuries arising out of concussion suffered during their playing careers. Critically, the players allege that the NFL failed to disclose these dangers and deliberately withheld such information from players while simultaneously making massive profits. In a recent attempt to settle the claim out of court, the NFL made an offer of US $900million, but this was provisionally rejected by a Court as “insufficient”. The rejection merely reflects the potential expense of such claims.


In November 2013, eight former players from English Premier League football club Stoke City commenced legal action against the club and former teammates for alleged instances of bullying and indecent assault suffered during the early 1980s. These allegations arose out of incidents that occurred while the players served apprenticeships at the club, including reports of physical and psychological illness and injuries from incidents of abuse, harassment and humiliation through various “initiation” ceremonies.


In Australia, we are yet to see the complete fallout from the discredited supplements program at the Essendon Football Club. While there has been saturation media coverage and various penalties imposed by the AFL on individuals, one issue appears to have received very little attention.


If the Essendon players and other employees of the club were indeed exposed to actual or potential risk to their health and safety through a program that apparently showed little or no regard for standard heath safeguards for medications and their ingestion, then the legal implications could be horrendous.


The OHS legislation obliges Essendon FC, as with any other employer, to provide a safe and healthy work environment, including adequate facilities for the welfare of their employees; adequate information; instruction; training and supervision, to ensure this premium commitment to health and safety. Further, these laws oblige an employer, including a sporting club or organisation, to monitor the health of employees and conditions of any workplace; and perhaps more significantly in this case – to keep information and records relating to the health and safety of employees, including in relation to injury reports, hazard identification, risk assessment and risk control. Breaches of these provisions could lead to penalties of more than $1 million for each specified breach.


Sport is business. Business requires people, through employment and engagement of workers, contractors and third parties. WHS legislation has broadened over the past century to capture most forms of activities relating to the conduct of business. As sport has become business, it has become bound by those legal obligations, just like every other employer. It is no longer good enough to tough it out. It is the business of sport to get on top of these risks.