WHS and The Professional Athlete: The Final Frontier for Workplace RegulationJuly 2, 2019
When the Field of Play is a legal minefield, you face some tough opposition when it comes to reducing your legal liability. If you want to win the game, or at least survive, it pays to know your WHS.
Professional Sport and the Workplace
In States where the model Work Health and Safety (WHS) laws are in place any “person conducting a business or undertaking” (PCBU) owes a duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by them, or whose work activities they influence or direct. The duty captures sporting clubs that employ athletes, as well as the governing bodies that manage and oversee the competitions in which those clubs compete (eg. Rugby AU, NRL, Cricket Australia etc.). The model WHS laws also impose a duty on the “officers” in control of PBCU’s to exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.
While model WHS laws require PCBU’s to take all reasonable steps to ensure the health and safety of all workers, including professional players, they don’t go as far as to require PBCU’s to ensure that workplace injuries don’t occur at all.
There’s a general public perception that the ‘sporting field’, with its inherent risks and dangers, shouldn’t be subject to the same workplace safety legislation that regulates a construction site or office building. This idea is reinforced by the fact that professional athletes are specifically excluded from all State workers compensation laws.
At a fundamental level, however, there are no special defences enjoyed by professional sport from the WHS Act. Further, there’s little difference between the sporting field of play (and the broader professional sporting environment) and any other workplace under the model WHS laws.
Common Law Negligence Claims vs WHS Regulation
Despite the concept of persons owing a ‘duty of care’ underpinning both areas of law, there’s a distinct difference between the duties owed by PCBU’s under model WHS laws and the common law duty of care owed by ordinary persons under the tort of negligence. The duties owed by PCBUs under WHS laws are subject to enforcement by Government regulators, often applying a standard of strict liability to certain stated duties and obligations of PCBUs, whereas a ‘tort’ is a civil wrong for which the innocent party is entitled to sue the offending party for damages.
The fundamental difference between duties owed by an employer pursuant to WHS legislation and those under the tort of negligence, is the way those duties are enforced. In order for a penalty to be handed down by a regulator for breaches of the WHS Act, WHS regulators are required to expend time and resources conducting an investigation of such a breach or suspected breach. Despite the fact that professional sporting workplaces are subjected to the same WHS laws as any other workplace, historically there has been a consistent and noticeable reluctance on the part of the WHS regulators to carry out investigations of professional sporting workplaces for WHS breaches, and to enforce WHS laws on the professional sporting industry. Several reasons for this reluctance have been advanced by academics, which include:
- Professional sport is treated differently to other industries and activities because of the dangers and risks inherent which make up the essential characteristics of sport
- Other ‘more appropriate’ investigative bodies exist to investigate unsafe practices in the professional sporting environment
- WHS regulators tend to move cautiously when called upon to enter new fields that are complex or in respect of which their presence is contentious and contested
- Sporting incidents are not a regulatory priority in comparison to other industries which do not have other appropriate self-regulatory/investigative bodies.
In addition to this reluctance on the part of WHS regulators, professional sport (and, interestingly, rugby league specifically) has seen large damages awards for personal injury resulting from on-field incidents. Where an injury is sustained by a professional athlete ‘on the field of play’ due to the carelessness or intentional act of another person, the common law may provide a remedy through the tort of negligence.
Common law negligence claims in respect of on field sporting injuries can and have been brought against:
- A competitor who caused the injury – in Rogers v Budgen,10 Budgen assaulted Rogers in a rugby league match. Budgen was held liable for the assault, which was occasioned by a deliberate blow to Rogers’ head with a forearm contrary to the rules of the game
- An opposing team or club – in McCracken v Melbourne Storm11 the Melbourne Storm was held liable for the injuries inflicted in an illegal tackle by two Melbourne Storm players during an NRL game
- The organiser of an event who may have failed to provide proper facilities, safe premises or adequate sporting equipment – in Noak v Waverley Municipal Council12 it was held that a rugby league player was owed a duty of care both by the league and the club, in relation to an injury he sustained during a fixture, when he fell over a sprinkler protruding from the playing surface
- An employer, where the sportsperson injured is an employee and the injury occurred in the course of employment. An employer may also be vicariously liable for careless actions of employees that cause injury to coworkers, sportspersons or others.
- With damages awards for personal injury having the potential to run into the millions of dollars, liability for injuries sustained during the playing of competitive sport has serious implications and there is no doubt that clubs and governing bodies have an obligation to ensure that the ‘workplace’ for professional athletes, including the field of play, is as safe as practicable.
The Challenge for Clubs
Sporting clubs are in a peculiar situation in that they don’t necessarily have the discretion to control the safety of the environment where their employees perform their work. They compete in competitions where the rules, permitted methods of play, and consequent safety risks, are set and regulated by governing bodies, not by the clubs themselves. In turn, there exists an inherent conflict as to who in fact owes the primary duty of care over professional athletes when they’re competing on the field. Given the relatively few decided cases in litigation to date, this lack of real control over the rules that govern the environment in which professional athletes perform may not be enough for a club as an employer and PCBU to rely on to avoid liability for injuries suffered on the field of play.
In the High Court case of Agar v Hyde,13 two amateur rugby union players who were severely injured while playing brought claims against various people and organisations (including the respective match referees, and local authorities involved with the control and management of the sport) for damages for negligence, contending that the rules in force at the time they suffered their injuries were such that they were exposed to unnecessary risk. The particular deficiencies in the rules, of which the claims were made, related to the formation of scrums.
Fundamental to the claims was that by reason of the capacity of the International Rugby Football Board (IRFB) to make and change the rules of the game of rugby football, each appellant owed a duty of care to all players of the sport, including the respondents. The content of that duty was formulated to take reasonable care in monitoring the operation of the rules of the game to avoid the risk of unnecessary harm to players. In the course of further argument, the reference to monitoring the operation of the rules was altered to taking reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily.
Though the High Court held that the IRFB did not owe a duty of care to the sport’s participants to amend the rules to prevent risk of neck and spinal injury, had the players been professional, and had their careers and earning potential been cut short, and where the employers and the governing bodies themselves had the resources available for research and prevention, the decision could have been different.
The on-going litigation involving Michael Greenfield and the Australian Rugby League Commission (ARLC), due to the ARLC’s failure to outlaw the shoulder charge,14 serves as a reminder that the risks of claims by Players in this area are real and significant. Although these claims have been brought against the governing bodies themselves, there is a fine line between injuries that occur because of a particularly unsafe rule of play, and a club’s negligent interpretation or workings within that rule.
By the same logic, if an athlete had returned a positive test for drugs (or indeed had failed to submit a testing sample when directed to do so) then although there may be mandatory requirements under a club or code’s rules for the athlete to attend a treatment and rehabilitation program and undergo monitoring, there could be a significant level of risk that arises if a player, potentially suffering from the effects of prolonged drug use or drug withdrawal, is still required to train and play as usual and may therefore be at heightened risk of injury – not only to themselves, but also to teammates and opposition players in a competitive match setting. Again, any liability for injury caused to the athlete, or by the athlete, that may be attributable to their exposure to drugs and/ or withdrawal from drugs would be an issue for the athlete’s employer.
Employers of athletes face an unenviable dilemma, for if a club were to actually attempt to address any perceived failings in the rules, with a view to minimise the legal liability for injuries to its employees or competitors, they would likely be met with resistance from the code and fans alike.
Professional sports athletes appear to be in a league of their own when it comes to the application of WHS laws. But the risks they face every time they step into a sporting arena mustn’t overshadow the fact that they are just as deserving of a safe working environment as you or I.