Australian businesses are required to comply with a range of workplace laws which govern the employment relationship and apply in the employment context.
Sporting organisations, like other employers, must also comply with Australian workplace laws regardless of whether employees are professional athletes and whether the “workplace” is the sports field or the locker room.
In this Special E-update we will explore key issues arising in the sporting employment relationship.
Australia’s anti-discrimination legislation prohibits discrimination against persons based on particular attributes in areas of public life, including employment.
The five main pieces of Australia’s federal anti-discrimination law are:
In addition to the above, each Australian State and Territory has also enacted anti-discrimination legislation. Each piece of legislation specifically protects certain attributes known as “protected attributes”. These protected attributes include age, disability, gender identity, immigration status, pregnancy or potential pregnancy, race, sex and sexual orientation.
In relation to employment, anti-discrimination laws specifically deal with discrimination at work. The laws generally provide that it is unlawful for an employer to discriminate against a person because of a protected attribute when recruiting, offering employment, terminating employment, determining terms and conditions of employment, benefits, access to promotion and training opportunities and in the performance of work.
In a workplace there is often significant thought and development committed to workforce planning and in particular “succession planning”. Similarly, in team sports it is not uncommon for there to be comment on how to strengthen the team for the next season and beyond. This often comes with a discussion of how and if more senior players should retire to “make way” for younger and up and coming players.
In 2011, Australian Cricketer Simon Katich was axed as a contracted player by Cricket Australia despite his consistently good batting form. Cricket Australia allegedly told Katich that his contract was not going to be renewed because it wanted to set up a new pair of opening batsmen and have the partnership settled and ready for the next Ashes series. Katich, then aged 35, was not part of Cricket Australia’s plans for the 2013 Ashes tour. At the time, Katich contemplated initiating legal proceedings against Cricket Australia, citing discrimination on the basis of age as a factor in Cricket Australia’s decision not to offer him a contract.
More recently, the North Melbourne Kangaroos AFL Club (North Melbourne) announced that in order to prepare younger players for 2018 and beyond, Brent Harvey would not be offered a contract for 2017. This was despite Harvey being one of North Melbourne’s leading players in 2016 and being a 432 game veteran for North Melbourne, breaking the record for the number of AFL games played. While Harvey stated that he disagreed with the direction of North Melbourne, he later announced his retirement from the game.
In an employment context, compulsory retirement (generally) constitutes discrimination on the ground of age and is unlawful under the ADA. However, the inherent requirements exemption can be used as a defence by sporting organisations to some claims of age discrimination. To rely on this defence, it must be demonstrated that the employee could not perform the inherent requirements (or core duties) of the role. For example, if a sportsperson could no longer play the sport because of his age – then the inherent requirements defence could apply.
Bullying and harassment are significant workplace issues for all employers. While professional athletes are often ambassadors for anti-bullying campaigns, it is important that sporting organisations address bullying behaviour within teams and clubs.
The Fair Work Act 2009 (Cth) (FW Act)’s anti-bullying jurisdiction provides that a worker who reasonably believes that they have been bullied can apply to the Fair Work Commission (FWC) for an order to stop the bullying.
Examples of bullying behaviour include abusive or insulting language, aggressive conduct, humiliating comments, practical jokes or spreading rumours – all behaviours that may arise in a team sporting environment.
Section 789FD of the FW Act provides that workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and that the behaviour creates a risk to health and safety.
Importantly, the FW Act uses the same term, “worker” as the harmonised work health and safety legislation. A “worker” is defined to include an employee, contractor, subcontractor, outworker, apprentice, trainee, work experience student or volunteer.
If access to the jurisdiction is achieved, an order may be made by the FWC if it is satisfied that (1) a worker has been bullied at work, (2) there is a risk the bullying behaviour will continue and (3) there is an ongoing risk to health and safety.
The Full Bench of the FWC has interpreted “at work” to include when a worker is performing work at any time or location and also when a worker is engaged in work or other activity which is authorised by the employer.
The Miami Dolphins
In 2013, the National Football League (NFL) in America commissioned an investigation into allegations of bullying and harassment at the Miami Dolphins (the Dolphins). Football player Jonathan Martin joined the Dolphins as a rookie in 2012. During the following season, Martin sought psychological treatment alleged to have been brought about by the bullying and harassing behaviour toward him by other Dolphins players.
The investigation report found that three players bullied and harassed Martin, another Dolphins player and an Assistant Trainer. The bullying and harassing behaviour included:
The bullying players claimed that the behaviour was locker room banter, that Martin went along or participated in the jokes and that it was part of the accepted locker room culture and team bonding.
However, the investigation report concluded that the behaviour was workplace bullying which contributed to Martin’s psychological condition. The investigation report did not accept that the culture of the team or the friendship between the players excused the behaviour and noted that the behaviour was contrary to the Dolphins’ Workplace Harassment and Discrimination Policy.
In addition, during the course of the investigation it was revealed that the team kept a “Fine Book”, in which arbitrary and trivial fines were placed on players, including Martin. The investigation report stated that the Fine Book was evidence that the main alleged perpetrator was aware that the conduct was unacceptable particularly because he attempted to have it destroyed.
When approached from the viewpoint of a sporting organisation, sportspeople could be considered to be “at work” when they are at training sessions, recovery sessions or on game day, with the workplace being the sports field or even the locker room. Further, bullying behaviour could include locker room “banter” or on field sledging between players.
Undoubtedly, the behaviour identified at the Dolphins would constitute bullying behaviour under the FW Act – allowing an order to stop bullying to be made.
Like other employers, sporting organisations should adopt and train all sportspeople in their anti-bullying and anti-harassment policies. Any bullying or harassing conduct should be identified and addressed to prevent such behaviour continuing and/or escalating.
Work health and safety legislation in Australia places an obligation on a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of “workers” (see definition above).
A PCBU is defined under the Model Work Health and Safety Act (Model Act) to include companies, partnerships, associations, sole traders and government entities. As noted above, there is a broad definition of “worker” and sporting organisations owe work health and safety duties to players as well as to coaches, trainers, support staff, volunteers and visitors.
Essendon Football Club
An investigation by the Australian Sporting Anti-Doping Authority and World Anti-Doping Authority into the Essendon Football Club’s (Essendon) supplements program in 2011 and 2012 revealed that players were injected with banned and/or experimental substances.
The Victorian workplace safety regulator, WorkSafe Victoria conducted an investigation into Essendon and the Australian Football League (AFL) for breaches of the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
In 2015, WorkSafe Victoria charged Essendon for failing, so far as reasonably practicable, to provide and maintain a working environment that was safe and without risks to health and to provide and maintain for employees a system of work that was safe and without risks to health.
Essendon pleaded guilty to the two breaches of section 21 of the OHS Act.
In January 2016, a Melbourne Magistrates Court recorded convictions against Essendon and imposed a fine of $200,000 for the breaches of the OHS Act.
Tottenham Hotspurs
Earlier this month, the High Court of Justice in England awarded $11.7 million in compensation to former Tottenham Hotspurs Football Club (Tottenham) player Radwan Hamed for a breach of duty of care.
Hamed suffered a cardiac arrest and brain damage whilst playing with the Tottenham Youth Team, three days after he had signed a professional sporting contract with the Club. The Court found that Tottenham’s Club doctors were liable (and Tottenham vicariously liable) for clearing Hamed to play despite medical reports which indicated that Hamed suffered from a genetic heart condition.
The investigation and prosecution by WorkSafe Victoria against Essendon and the decision against Tottenham demonstrates that sporting organisations also have the duty to ensure the health and safety of their workers (the players) on and off the field.
Building a high performance team culture is essential to the success of businesses and sporting organisations alike.
Strong team culture is often built around team values and a commitment to those values.
Employers should immediately address issues or employee behaviour when it falls short of what is expected or has the potential to destabilise team culture. In the same way, as professional sportspeople are identified as public role models, they are under an increased level of scrutiny and are expected to demonstrate a higher standard of behaviour.
On-field behaviour
Management and senior players have the responsibility for setting the standards of behaviour expected. Earlier this month after a match, two international players of Czech Football Club AC Sparta Prague (Sparta) directed sexist comments toward a female assistant referee, including that women should not referee men’s football and that “they belong at the stove”.
Sparta denounced the players’ behaviour and the comments made. The players were ordered by the Club to train with the Sparta women’s team and be ambassadors at an UEFA Women’s Champion’s League match.
This resulted in some positive and apologetic statements from the male players, acknowledging the wrongness of their statements about the female referee.
Off-field conduct
For sporting organisations, it is often the off-field behaviour of players which requires a response from management due to the public profile of those involved and the potential reputational damage.
During the 2016 season, coach Mal Meninga of the National Rugby League (NRL) and the Australian Rugby League (ARL) decided not to select two “in form” players to be members of the Australian Kangaroos team due to their off-field behaviour on the basis that the way a player behaved off the field was equally as important as how they performed on the field.
Perhaps more sporting organisations need to adopt a similar approach to Mal Meninga by setting a high standard when it comes to player behaviour and by refusing to indulge/protect/excuse ‘star’ players’ poor behaviour – after all, it is often said that when it comes to player (employee) behaviour “you get what you tolerate”.
Our previous blogs – Off the Clock – Employer Interest In Employee’s Out Of Work Conduct, Video on Demand – The Danger to Employers for Employees Caught Behaving Badly and What To Do About Employees Charged With Criminal Offences look at the conduct and behaviour of professional sportspeople who were involved in off-field incidents.
Most recently, New Zealand Rugby Union team member, Aaron Smith was suspended for one game after an incident with a female in an airport disabled toilet. The player, who was in team uniform, was witnessed by a member of the public who was waiting to use the bathroom and reported the inappropriate behaviour.
The response by Sparta, the NRL, the ARL and New Zealand Rugby demonstrates that unsatisfactory behaviour in the workplace or connected with the employment relationship is not acceptable. Action, including disciplinary action, may be taken when the behaviour of players does not accord with team culture and expectations.
Equally however, sporting organisations must ensure that any disciplinary action taken against players also affords them procedural fairness.
The contract of former NRL player Todd Carney was terminated by the Cronulla Sharks (Cronulla) after his off-field indiscretion, which brought the game into disrepute. Carney subsequently claimed that he was denied procedural fairness prior to his sacking by Cronulla. The NRL Appeals Committee agreed with Carney’s claim that he was not afforded an opportunity to appear before the Cronulla Board, as provided in the NRL Collective Bargaining Agreement. Carney has since commenced proceedings in the NSW Supreme Court.
The principles of procedural fairness require the allegations to be put to the employee, who is provided with an opportunity to respond, prior to any decision on any disciplinary action being made by the employer. Further, where an enterprise agreement or other documents sets out a procedure to be followed when dealing with disciplinary issues, such obligations should be strictly followed.
As the above demonstrates, common workplace issues and risks which may arise over the course of the employment relationship apply to businesses and sporting organisations alike.
Both businesses and sporting organisations must comply with Australia’s workplace laws and should approach workplace issues and address any legal risks in accordance with their obligations under the relevant legislation.
Food for Thought for Sporting Organisations
If your organisation requires any assistance with the above please feel free to contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.
Q: What lights up a football pitch at night?
A: A football match.
Q: How did the football pitch end up as triangle?
A: Somebody took a corner!
Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
