Bringing you the latest legal news, information and insights impacting the sport and leisure industry.
Time to fix your fixed term contracts
As mentioned in an earlier update, from 7 December 2023 the Fair Work Act 2009 (Cth) (FW Act) has limited the ability for employers to engage an employee on a fixed term contract for more than two years, including any extension or renewal period.
Where a fixed term contract contravenes these new provisions, the expiry date has no effect, and the contract will continue as a permanent employment relationship. Associated civil penalties and other liabilities (in terms of employee entitlements) may apply.
These limitations are designed to transition employees to more secure, permanent employment. However, the sporting industry has traditionally relied on fixed term contracts to meet its unique resourcing needs ─ for example, the need to contract elite athletes or coaching staff for several seasons at a time, without necessarily committing to providing them with indefinite and ongoing work.
The importance of fixed term contracts in the sporting context was highlighted in the recent judgment of Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, where a referee's employment came to an end as a result of the expiry of his fixed term contract, rather than him being actively dismissed by the employer. As a result, the Full Federal Court upheld the decision that the referee was not protected from unfair dismissal.
The utility of fixed term contracts in the sporting context has also been reflected in certain exceptions to the FW Act limitations, including for:
- employees engaged to support the administration or organisation of an international sporting event that is not regularly held in Australia; and
- employees working in organised sport (such as athletes, coaches, match officials and performance support professionals), where the contract is entered into before 1 November 2025.
With the 1 November 2025 deadline fast approaching, it is an opportune time for sporting organisations to rethink their use of fixed term contracts. Unless the organised sport exception is extended under the Fair Work Regulations 2009 (Cth), relevant employers will be restricted in their use of fixed term contracts after this date and will need to consider other arrangements for their workforce.
Renewal of funding agreement between WADA and SIA
In November 2024, the World Anti-Doping Agency (WADA) announced that it had renewed its long-standing funding agreement with Sport Integrity Australia (SIA). In addition to Australia's annual contribution to WADA, the agreement commits SIA to providing an amount of AU$200,000 to support the Oceania Regional Anti-Doping Organisation (ORADO), which has some 17 member countries.
The funding agreement is targeted at:
- educational and capacity building activities;
- delivery of the Doping Control Program; and
- ORADO governance and organisational development.
The agreement was described by WADA Director General, Olivier Niggli, as a great example of WADA facilitating connections between more robust anti-doping organisations with those in regions that require more support.
Liability upheld for spectator abuse
In December 2024, the Victorian Court of Appeal delivered its judgment in Footscray Football Club Ltd v Kneale [2024] VSCA 314, providing sporting clubs with a critical reminder of their duty of care to child spectators who may attend their premises.
Mr Kneale alleged that he suffered sexual abuse at the hands of an unpaid volunteer of Footscray Football Club (Club) in the 1980s. Mr Kneale was not a member of the Club, but often attended its premises as a child to spectate football games. The volunteer was alleged to have regularly abused Mr Kneale in the Club's administration offices at half time ─ conduct the volunteer was later convicted of and sentenced for.
On first instance, a jury found the Club directly negligent for the volunteer's actions towards Mr Kneale, who was awarded some $5,943,151 in compensation for the abuse. While the Court of Appeal reassessed Mr Kneale's entitlement to damages (reducing the sum to $2,637,000) for evidentiary reasons, it reaffirmed that the duty of care owed by the Club was broad and required it to reasonably foresee the actions of the volunteer, including by taking reasonable steps to protect young spectators from sexual abuse.
While the Club has filed for special leave to appeal the decision to the High Court, it nonetheless serves as a reminder for sporting organisations to ensure they maintain effective child safeguarding policies and procedures.
"No fault or negligence" for Sinner
After defending his Australian Open title in January, Jannik Sinner has remained in the headlines for other reasons, with his ongoing doping matter finally coming to a head. The International Tennis Integrity Agency (ITIA) brought proceedings against the number 1 ranked ATP singles player for breaches of the Tennis Anti-Doping Program (TADP) in early 2024.
The charges arose from the actions of Sinner's physiotherapist, Giacomo Naldi, who used a medical spray containing clostebol to treat a cut on his own finger. Naldi was unaware that the spray contained a prohibited substance. Between March 5 and 13 March 2024, Naldi provided treatments to Sinner without protective gloves. This reasonably led to the transfer of clostebol, an anabolic steroid, to Sinner's body.
Sinner was charged with Anti-Doping Rule Violations (ADRVs) under Articles 2.1 and 2.2 of the TADP due to the presence of clostebol in two urine samples collected during the BNP Paribas Open and the Miami Open. Although Sinner acknowledged the presence of clostebol in his sample, he argued that he was at "no fault or negligence" as he could not have reasonably known that he was affected.
The standard sanction for ADRVs under Articles 2.1 and 2.2 of the TADP is four years of ineligibility, which may be reduced to two years if the player proves the ADRV was not intentional. The Independent Tribunal found that Sinner committed the ADRVs against Articles 2.1 and 2.2 but held there was "no fault or negligence", which eliminated any period of ineligibility. However, Sinner's results from the BNP Paribas Open were disqualified, and any medals, ranking points and prize money obtained during the Indian Wells tournament were forfeited.
On 26 September 2024, WADA appealed the Independent Tribunal's decision that Sinner was at "no fault or negligence" to the Court of Arbitration for Sport (CAS). WADA maintained that the decision was incorrect and proposed that Sinner should be declared ineligible for a period ranging 1-2 years.
On 15 February 2025, WADA announced a case resolution settlement with Sinner, who agreed to a three-month ineligibility period. Despite the initial CAS appeal, WADA recognised that Sinner bore "no fault or negligence", accepting Sinner's account that he did not intend to cheat. Ultimately, Sinner's exposure to clostebol was attributed to the negligence of his support staff and was found not to enhance his performance.
For more information or enquiries about changes impacting the sport and leisure industry contact Lander & Rogers' Sport & Leisure team.
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