Sport insights - April 2023

Each month, access the latest legal news, information and insights impacting the sport and leisure industry.

Managing injury risks in your event

Recent case: USM Events Pty Ltd v James [2023] QCA 71

A recent decision in the Queensland Court of Appeal confirmed that an event operator had negligently failed to exercise due care and skill following an incident during a modified triathlon that took place on the Gold Coast. The triathlon, which comprised over 1,400 athletes including eight para-athletes, involved an able-bodied athlete being struck by a para-athlete in a racing wheelchair, causing the former to fall and sustain brain and psychiatric injuries.

The injury occurred in an "S-bend" component of the course. The S-bend was approximately five to six meters wide with barriers flanking each side to separate the run section of the race from the cycling section. The respondent was running through the S-bend when she was struck. The Court's decision raises important lessons for sport in managing risk at an event including:

• Dynamic risk assessment: Event operators must assess new and arising risks in any changed environment and avoid a "business as usual" mindset. It is prudent to continuously exercise diligence in assessing how to best mitigate potential risks.
• Planning and safety: Organisers should consider potential risks where para- and able-bodied athletes compete in the same event. For example, racing wheelchairs are likely to travel much faster than runners. Due to the weight and speed of the chair, consideration should be given to course layout, barriers, athlete separation methods and the potential for a crash to cause severe injury.
• Avoiding liability: Notification of athletes regarding course or layout changes, even if undertaken promptly, is unlikely to overcome defects in the layout or course that could result in potential negligence.
• Duty of care: While staggering the start time of a race for different athletes may help reduce risk, it will not fully discharge the operator's duty of care.
• Reasonable steps: Logistical considerations will be a factor in assessing whether steps taken to minimise risk are reasonable. In this case, the Court found that it was not feasible to have para-athletes participating on a separate course but there should have been improved course delineation between para-athletes and able-bodied athletes to avoid potential collisions.

Changes to the Fair Work Act - are your employment contracts compliant?

Recent amendments to the Fair Work Act introduce the most comprehensive and wide-ranging changes to Australia's workplace relations framework since its introduction.

Fixed-term contracts

One of the most significant changes for sport organisations is prohibition of certain fixed-term contracts. From 7 December 2023, it will be unlawful for an employer to engage an employee on a fixed-term contract of more than two years (inclusive of any extension or renewal period) or a fixed-term contract that contains more than one extension/renewal option. There are only limited exceptions to the general prohibition, including:

• where an employee earns above the high-income threshold (currently $162,000),
• where the employee has specialised skills required to complete a specific task, or
• where an employee is engaged in a government-funded position and there is no reasonable prospect of that funding being renewed.

This final exception is a very high threshold to satisfy, and mere uncertainty as to the continuing availability of funding will not be sufficient.

Where a fixed-term contract contravenes the legislative prohibition, the expiration date will be of no effect and the contract will take effect as an ongoing employment contract. A sporting body that contravenes these provisions may also be liable for civil penalties, together with the obligation to pay other employee entitlements such as leave, notice of termination and redundancy pay.

Pay secrecy

Another significant change concerns the prohibition of "pay secrecy" clauses in employment contracts that prevent employees from disclosing their remuneration. From 7 December 2022, pay secrecy clauses in existing employment contracts have no effect. From 7 June 2023, employers who include pay secrecy clauses in new employment contracts will be exposed to penalties. Employers should carefully review their employment contracts to ensure they are compliant.

Sexual harassment

Changes have been made to sexual harassment laws, with the introduction of a positive duty to eliminate sexual harassment. The duty places an onus on employers to take "reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, victimisation and hostile work environments as far as possible". Learn more about the changes and your obligations as an employer or download the Respect @ Work guide.

Understand what the Secure Jobs, Better Pay Bill means for your business or contact Lander & Rogers' Sport and Leisure team.

Basketball - transgender athlete ineligible to play in NBL1 South

After review by an expert panel, Basketball Australia determined that transgender athlete Lexi Rodgers is ineligible to play elite level basketball for the Kilsyth Cobras in the NBL1 South competition this season. The review panel was comprised of Dr Peter Harcourt (BA Chief Medical Officer, Commonwealth Games Medical Advisor), Suzy Batkovic OLY (BA Board Member, three-time Olympian) and Diana Robinson, Associate Professor at The University of Notre Dame Australia.

Basketball Australia stated that it intended to strike a balance between inclusivity, fairness and the competitive nature of the sport. Panel member Suzy Batkovic highlighted that Basketball Australia was continuing "…to develop our own framework for sub-elite and elite competitions" and understood "…the need to have a clear process and continual education within all layers of the sport so we can best support players, coaches, clubs, associations and the wider basketball community".

Basketball Victoria's Guidelines for the inclusion of Transgender and Gender Diverse People in Basketball, were approved in February 2023. The guidelines indicate that eligibility criteria for elite and sub-elite basketball are being established, with matters determined on a case-by-case basis in the interim.

Sport organisations are subject to Commonwealth and state/territory anti-discrimination legislation when determining eligibility criteria for sports leagues and competitions. Under Victoria's Equal Opportunity Act, it is prohibited to discriminate against a person on the basis of their gender identity. There are lawful exceptions in Commonwealth, state and territory laws, and in Victoria and several other jurisdictions a "strength, stamina or physique" exception may allow a sport to exclude people of one sex or gender identity from a competitive sporting activity.

It is vital for sport organisations to seek professional advice before determining and implementing eligibility criteria for competitions to ensure the proposed criteria are lawful and reasonable in the circumstances. Learn more about the matter in these statements shared by Basketball Australia and Lexi Rodgers.

Developments in sport and sustainability

With a growing community focus on environmental sustainability, sport organisations are increasingly adopting a more strategic approach to sustainable practices.

The Sustainable Sport Index, a recent initiative to understand the collective environmental and social impacts of sport venues in the USA, already has the support of major sporting leagues including the MLB, the NFL, and the NBA. In its 2022 report, the Sustainability Sport Index found that 48% of participating venues reported an increase in revenue due to a sustainability program they implemented. This highlights not only the environmental but strategic business implications that good environmental practices have for sports organisations.

In Australia, new climate legislation, including the Climate Change Act 2022 (Cth) and Climate Change (Consequential Amendments) Act 2022 (Cth), has been introduced. While not imposing any direct obligations on companies, the legislation lays out a path for significant government policy development. Sport organisations should be aware of the changing landscape and inevitable future requirements for greener practices to incorporate into their strategy and planning.

Lander & Rogers will provide updates on changes to legal obligations to keep you informed.