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As of Round 17 of the season, there were upwards of 20 suspensions of players for “dangerous tackles”. In some cases, the suspended player’s opponent has been concussed. However, on many occasions the player’s opponent has not been concussed, although there may have been a risk of concussion. Further to this, the modes of the dangerous tackles have been different for many of the incidents which have led to suspensions. This has led to a considerable amount of confusion and frustration among fans and players as to what constitutes a dangerous tackle. This has led many fans to make claims that the game of Australian rules football has “gone soft” and that tackling will eventually disappear from the game.

This article will briefly examine the current sporting landscape, in which CTE and concussion have increasingly become a serious concern for sporting organisations globally. It will then review the rules related to “dangerous tackles” and how they are currently applied by the AFL tribunal. It will discuss the AFL’s legal responsibilities to players. Finally, it will highlight the fine line which exists for the AFL to balance its legal responsibilities while also maintaining the “fabric” of the sport.

CTE and Concussion – a Serious Problem for Sports Organisations

CTE is a serious and progressive brain disease associated with concussion and repeated blows to the head. It can only be conclusively diagnosed after death. Symptoms associated with the disease include memory and thinking issues, confusion, personality changes, depression and suicidal thoughts. The disease can lead to dementia. Research on former NFL players in the US has recently shown that 345 of 376 players studied (91%) suffered from CTE. CTE is also a risk for boxers as well as soccer and rugby players around the world. In March 2023, in Australia, the AFL acknowledged the link between head trauma, serious neurodegenerative disease and CTE. Similar admissions have been made by the National Rugby League and Football Australia, following recognition by the US National Institutes of Health.

In July 2023, it was revealed that former AFLW premiership player Heather Anderson, who took her own life in November 2022 at the age of 28, suffered from CTE. Ms Anderson suffered at least one diagnosed concussion during her short career in the AFLW. She is the first known professional female athlete to be diagnosed with CTE, after numerous male professional sports people (including AFL players Shane Tuck and Danny Frawley) and have previously been diagnosed with CTE following their deaths, which are believed to be as a result of (or related to) CTE.

It is in this context that sporting organisations are having to consider how they reduce the risk of head injuries and concussions that may lead to players developing CTE. The risks to sports organisations that do not act quickly cannot be understated, with not only the prospect of legal action from former players who have been injured, but also the potential loss of the sporting stars of the future, who may be deterred from participating (or their parents may be deterred from allowing them to participate) given the increasing recognition of serious health consequences and potential early death as a result of the repeated head trauma associated with contact sports such as boxing and the various football codes.

The Rules and How They are Applied

In Australian rules football, a tackle is an act done to prevent a player from effectively disposing of the football. It is legally (and usually) executed by one player wrapping their arms around the torso of the player in possession of the football below the shoulder and above their knees to prevent the tackled player from disposing of the football effectively. The tackler will often try to bring the player to the ground to complete a tackle, but they cannot thrust the tackled player forward by pushing them or falling on top of their back whilst doing so. The tackler can also stay upright and pin the football to the tackled player so that they cannot dispose of the football.

The skipper standing up with a big tackle 😤#AFLDonsPower pic.twitter.com/tun9egvQrt

— AFL (@AFL) July 1, 2023

ABOVE: A legal tackle being executed by Zach Merrett of the Essendon Football Club against Aliir Aliir of the Port Adelaide Football Club.

During the 2023 season, AFL umpires have been directed by the league to interpret tackles by players which cause their opponent’s head to hit the ground as dangerous. Penalties for dangerous tackles have been a part of the game for a long time. The interpretation of what is a “dangerous tackle” has been developing over time, and expanding. However, 2023 has seen a significant shift in the interpretation of what is considered a dangerous tackle and players (and the fans watching the game) have been struggling to adjust to the sudden and serious change. Not all dangerous tackles are reportable offences which could lead to the suspension of a player, but this season has seen a dramatic increase in the number of reports and suspensions for rough conduct involving “dangerous tackles”.

The AFL Tribunal Guidelines (Guidelines) provide guidance as to when a dangerous tackle might become a reportable offence. Under the Guidelines, all dangerous tackles which are capable of being charged come under the broad category of “rough conduct”. A tackle which is deemed unreasonable in the circumstances could be considered rough conduct.

In determining whether a tackle is a reportable offence, and whether it was careless or intentional conduct, the AFL may have regard to:

• whether the tackle consists of more than one action (for example, where a player first holds onto their opponent, before making a secondary action to take them to the ground);
• whether the tackle is inherently dangerous (for example, a “spear” tackle where the player is lifted from the ground and their head is driven into the ground);
• whether the player who was tackled was in a vulnerable position at the time and without great opportunity to protect themselves (for example, if a player’s arms are pinned to their body by the tackle which means that they cannot safely brace for contact with the ground); and
• whether the player executing the tackle has slung, driven or rotated their opponent into the ground with excessive force.

Should Alex Neale-Bullen get weeks for this sling tackle?

(via @afl)

pic.twitter.com/03G8LpdzPd

— 7AFL (@7AFL) August 5, 2020

ABOVE: Alex Neale-Bullen of the Melbourne Football Club laying an illegal “sling” tackle on Will Hamill of the Adelaide Football Club.

The AFL will also consider the potential of the tackle to cause injury when determining the grading of the impact of an offence. In broad terms, this means that tackles which have the potential to cause injury may be judged more harshly in the grading of impact even if the tackle itself did not eventuate in an injury.

For all dangerous tackles by players where their opponent’s head hits the ground, the grading of the point of contact with the other player will be high contact, even though the tackling player did not actually make contact with the player’s head, neck or shoulders. High contact offences attract more severe sanctions.

The AFL’s approach to dangerous tackles in 2023 has led to players being suspended for tackles which may not have attracted a sanction in previous seasons, and in fact previously would have been considered a perfect example of a suitable tackle.

In determining whether a player should be suspended, the AFL has placed an emphasis on the outcome of a tackle rather than the action itself or the intention of the tackler. The AFL’s tribunal has said, “[t]he question in these circumstances will always be whether the tackler has done enough to convert a potentially dangerous tackle into a tackle that’s not dangerous”. This means that there is an emphasis on whether the tackling player has acknowledged and adhered with their duty of care to their tackled opponent. This could be demonstrated by the tackling player leaving their opponent’s defensive arm free to brace for contact with ground, or swivelling their opponent so that their opponent lands on top of them rather than the ground. In the rare cases where the AFL tribunal has determined that the player has demonstrated that they have done all they could do to avoid their opponent’s head hitting the ground, the player has been cleared of the offence. However, there have thus far been only two such cases where a player has been cleared by the AFL’s tribunal of a rough conduct dangerous tackle charge.

The AFL’s Legal Responsibilities

One of the reasons why the AFL has needed to punish dangerous tackles is to protect the heads of players from injury and trauma. As discussed above, it is now well-established that concussions in sport could have potentially serious lifelong health impacts on athletes. The AFL has obligations under workplace health and safety laws to provide a safe place of work for the athletes which take part in the sport. There are also obligations under tort law which place a duty of care on the AFL.
Earlier in 2023, a group of former AFL players filed law suits against the AFL for alleged negligence and breaches of workplace health and safety laws. Most of the group of former players had suffered multiple concussions throughout their professional careers and were eventually diagnosed with permanent or long-term neurological injuries.

Outside of Australia, over 200 professional and amateur rugby union players in England are suing the Rugby Football Union, World Rugby and Welsh Rugby Union, for failing to protect them against repetitive concussion injuries. Likewise, in 2013, over 4,500 former National Football League (NFL) players in the United States sued the NFL for concussive injuries sustained during their playing careers. The case eventually settled for around $1 billion (USD).

Given these examples, it is unsurprising that the AFL are taking head injuries very seriously.

In terms of the AFL’s legal responsibilities, it owes players a duty of care to provide them with a safe workplace. While the players’ respective clubs are their employers, the AFL effectively operates the workplace in which they primarily do most of their work – playing football matches at the various stadiums and ovals. This duty of care, which may not have been well-known 20 or 30 years ago, is now at the forefront of the AFL’s mind given the new and developing knowledge on the impacts of concussive injuries. In Victoria, under the Occupational Health and Safety Act 2004 (Cth) (OHS Act), persons and body corporates who have the management or control of a workplace are required to ensure that the workplace is safe and without risks to health as far as is reasonably practicable. Breaches of the OHS Act could leave the AFL liable to very hefty financial sanctions. Likewise, players could take, and currently are taking, legal action against the AFL under the tort of negligence for breaching its duty of care by failing to provide the players with a safe workplace and reduce their risk of serious injury.

On the contrary, there could be an argument made that the players voluntarily assumed the risk of potentially suffering severe head injuries when they agreed to play a contact sport, such as Australian rules football. This is because the very nature of Australian rules football is that it is a competitive and very physical sport with many contests which could involve a player incidentally injuring their head. However, the High Court held in the case of Agar v Hyde [2000] HCA 41 that voluntary participation in a sport does not necessarily imply that the participant has assumed the risks associated with the sport to the extent that this negates the existence of a duty of care on the part of the relevant sporting body. Thus, playing the sport in and of itself will not mean that the AFL has no responsibility to protect players’ heads.

In saying that, the decision of Agar shows that voluntary participation in the sport remains a relevant factor in determining liability for injuries in sport. Other relevant factors when determining liability include whether the level of control a controlling body has over the prevention of injuries, as well as the burden that imposing a relevant duty of care would have on the controlling body (e.g. finding a duty of care could lead to an infinite number of claimants for their injuries). All of these factors would appear to favour a conclusion that as long as the AFL has made a concerted effort to reduce the likelihood of head-related injuries, then it would have discharged any prospective duty of care which it may owe the players. By tightening the interpretation of “dangerous tackles” both on-field and when determining reportable charges of “rough conduct”, the AFL appears to be likely to have discharged its prospective duty of care.

Given the AFL’s various legal responsibilities, it is not difficult to see why it has responded to dangerous tackles in the manner it has in 2023. However, some AFL fans have been critical of the strict enforcement action the AFL has adopted, stating that the interpretation will ruin the “fabric” of Australian rules football as a competitive and physical sport. Likewise, AFL coaches and players have also expressed confusion as to the harsh enforcement of dangerous tackles, with some citing that they are unsure of what players could do when making a split-second decision to lay a tackle.

An example of this is Hawthorn captain James Sicily’s tackles against Brisbane Lions midfielder Hugh McCluggage in the Round 14 match. In this incident, McCluggage gathered the ball from the ground before attempting to run away from the congestion of other players in his immediate area. In an act of desperation to prevent McCluggage from disposing of the ball effectively, Sicily lunged forward, and grasped the left arm and right hip of McCluggage. He then rotated McCluggage to execute his tackle. In the middle of the rotation, Sicily’s teammate Tyler Brockman ran past to impact the contest and made incidental contact with the upper body of McCluggage. Eventually, Sicily completed the tackle with McCluggage hitting the left side of his head on the ground concussing him. Sicily was later suspended for three matches for his tackle due to his “excessive rotation” of McCluggage in the tackle, which caused McCluggage to hit his head on the ground without means of protecting himself.

James Sicily has been referred directly to the tribunal for rough conduct following this incident with Hugh McCluggage.

Saturday MRO findings: https://t.co/uwL1E7gBoN pic.twitter.com/ZLjET1xIyW

— AFL (@AFL) June 11, 2023

ABOVE: James Sicily of Hawthorn Football Club was suspended for this tackle against Hugh McCluggage of the Brisbane Lions Football Club.

During his tribunal hearing, Sicily remarked that it “would’ve been a poor reflection of leadership as the captain of the club choosing not to tackle, and wouldn’t have met the standards expected of us”. This perfectly illustrated the conundrum which players face. Players are expected to defend with intensity and prevent their opponent from disposing of the football effectively. This goes to the very essence of the game of Australian rules football.

There are also concerns that the AFL has “gone too far” in its dangerous tackles crackdown which could be counter-productive to protecting players’ heads. There are concerns that players will deliberately become limp in a tackle so that their head hits the ground in order to draw a dangerous tackle free kick penalty against the tackler and gain a competitive advantage. This would likely put player’s health and safety at risk, which could potentially mean that the AFL will be in breach of its legal obligations.

These factors all emphasise the AFL’s unenviable task. It must be mindful of not disenchanting fans and players by fundamentally changing the sport, but it is also bound to adhere to its legal obligations. The tension between these two issues creates a fine line by which the AFL and many other sports must operate. While some fans’ opinion that the AFL will “kill the tackle” may be an overreaction, this case study does raise significant philosophical and legal questions about the viability of contact sports where the risk of injury is ever-present. Such questions may well be answered when the Court hands down its decisions on the former AFL players’ concussion claims currently before it.

Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.

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How might performance enhancing technologies be allowed at an elite level 

create issues at non-elite levels and the sport overall?

Where should sports draw the line on technological advancement or enhancement?

To illustrate the many considerations decision makers need to take into account when considering regulating performance enhancing technology in sport, I’m taking a magnifying glass to a sport I’m involved with and technology I have experience with. That is, athletics and “performance enhancing” running shoes (commonly referred to as “super shoes”). I’ll start by taking a look at the sport itself, the technology in question and the international bodies’ stance before taking a look at what this highlights for every sport.

Athletics and Performance Enhancing Running Shoes

There are a number of big running events unfolding this month and next both internationally and across Australia. The World Athletics Championships is just around the corner followed by the Commonwealth Games shortly after. Closer to home, Mackay, Queensland played host to the 2022 Oceania Athletics Area Championships in early June, and as this article is published, all going to plan, I will have run along with thousands of other runners to compete in the Gold Coast Marathon in Queensland, which will also double as the Oceania Area Marathon Championships. Last month, on 15 June, we also saw the launch of a new “super shoe” – Nike’s Air Zoom Alphafly Next% 2 (Nike Alphafly 2), which builds and improves on the Nike Air Zoom Alphafly Next% (Nike Alphafly) discussed in this article. These shoes are specifically designed for marathon and long distance running. 

At the elite international competition events, every athlete competing will be wearing some kind of “super shoe”. Essentially, these shoes help athletes run faster for longer. In any road race in Australia, even including many “Fun Runs”, just about every reasonably serious athlete will be wearing some version of super shoe, with the vast majority wearing a version of either the Nike Alphafly or Nike Vaporfly. The reality is, it’s almost impossible to be competitive if you’re not wearing a super shoe when almost every other athlete is.

With athletics and running super shoes taking centre-stage at the moment, it seems a perfect time to consider how these super shoes are impacting on the sport of running at the elite and sub-elite levels, and to reflect on how the lessons learned from these super shoes will be relevant to other sports.

The Performance Enhancing Technology

To provide some context, performance enhancing shoes have been around in professional road racing since about 2016 when Nike launched the Nike Zoom Vaporfly 4% (Nike Vaporfly), the shoe which essentially revolutionised the sport. Since then we have seen other running shoe brands follow suit, releasing their own “super shoes” including: 

• the Adidas Adizero Adios Pro 2 (I personally use this alongside the Nike Alphafly); 
• the Adidas Adizero Prime X (a shoe which breaches the World Athletics rules on shoe specifications, discussed further below); 
• the Asics Metaspeed Sky; 
• the Hoka Carbon X3; 
• the New Balance RC Elite 2; and 
• the Puma Deviate Nitro Elite. 

Nike also developed a prototype shoe in conjunction with world record holder in the marathon, Eliud Kipchoge, as part of a project to get Kipchoge to become the first man to run a sub-2 hour marathon (which Kipchoge went on to achieve in the Nike Alphafly prototype). This later led to the release of the Nike Alphafly, which is the commercially available version of the shoe worn by Kipchoge to run a sub-2 hour marathon. Some years later Nike released the Vaporfly Next% 2 (Nike Vaporfly 2). 

Both men’s and women’s world records for the main endurance running events from 5km up to the marathon, have been obliterated in these “super shoes”. The times of the top 50 elite marathon runners (in both male and female competition) have improved during this period by about 2%+. Meanwhile, only a small number of world records in sprints and middle-distance running have been broken in the same period. 

The Nike Vaporfly combined technologies that were already available in the shoes of other brands, but it did so in an innovative manner that created a significant performance advantage and with improvements in the foam used and the design of the carbon fibre plates used. The Nike Vaporfly 4% was so named because it had been tested by Nike as improving performance (measured by energy return) in distance racing by 4% (by reducing energy consumption) compared to conventional running shoes. This equates to a potential 3.4% improvement in marathon times for elite athletes running at marathon world record pace. This has been achieved through its combination of a carbon fibre plate and ZoomX foam which provides a significant energy return to the runner leading to improved running economy. 

Since 2016 Nike has developed their technology further, and currently the two biggest road running shoes are the Nike Vaporfly Next% 2 and the Nike Alphafly (although this will soon be overtaken by the Nike Alphafly 2). In track racing similar “super shoes” also hit the market in 2019. As mentioned above, in the coming months we will start to see more athletes in Australia wearing the Nike Alphafly 2. 

I have personally experienced the significant benefits of super shoes myself, with an improvement in my marathon time of about 22 minutes wearing my Nike Alphafly shoes as compared to my previous marathon in ordinary runners. While the improvement certainly cannot be put solely down to my different shoes, I can absolutely feel the significant difference between when I’m wearing them and when I’m not, and I am sure that the shoes improved my time by at least several minutes.

International Competition Rules and Regulations

With super shoes advancing, in June 2020, World Athletics set up what they named the ‘Working Group on Athletic Shoes’, which replaced the “Assistance Review Group”. The Working Group on Athletic Shoes is responsible for determining the rules and regulations for shoes in athletics. It includes representatives from six of the major running shoe manufacturers. 

Following the inception of the Working Group, updated guidance on footwear was provided in August 2020, and since then there have been further updates which build on previous regulations, such as limitations on sole thickness and the number of rigid structures allowed within the shoe. Accessibility was also an important issue dealt with by the regulations, with limitations placed on the use of “Development Shoes” that are not readily available for purchase. The Working Group brought in specific rules for the Tokyo 2020 Olympics, and upon that announcement the World Athletics CEO explained, “The major and central issue the Working Group on Athletic Shoes had been exploring is a long-term sustainable and implementable solution for athletic shoes which balances innovation and fairness.”

The World Athletics Regulations state that they intended to balance the following principles: 

• Fairness within athletics;
• Health and safety;
• Performance in Athletics are achieved through the primacy of human endeavour over technology in Athletic Shoes and advances in the same; and
• Acknowledging that Athletes wish to compete in “high quality”, “innovative” and “leading” athletic shoes.

While these are the stated principles behind the World Athletics Regulations, with the presence of representatives of the major shoe companies in the Working Group and the dramatic improvements that have been seen in athletics since these shoes have become available, it’s questionable whether in fact the regulations actually achieve the appropriate balance. The regulations, which were updated again in December 2021 for 2022, place limits on the thickness of the sole of running shoes. The technical requirements set out maximum thickness, by event. For example:

• For track events up to but not including the 800m, the maximum sole thickness is 20mm;
• For track events 800m and above the maximum sole thickness is 25mm; and 
• For road events the maximum sole thickness is 40mm. 

The regulations also maintain limits on the number of rigid structures such as carbon fibre plates, amongst other things. 

Source: World Athletics Regulations

The World Para Athletics (WPA) Rules and Regulations 2020-2021 followed which state that “The purpose of shoes for competition is to give protection and stability to the feet and a firm grip on the ground. They must not give athletes any unfair assistance or advantage.”

The regulations go further stating that shoes “may be customised to suit the characteristics of a particular athlete’s foot. However, one-off shoes made to order (i.e. that are only ones of their kind) are not permitted.”

If there is reason to believe that the shoe may not comply with the rules and regulations, WPA “may refer the shoe or shoe technology for detailed examination and it may prohibit the use of such shoes or technology in competition pending examination.” This demonstrates the seriousness with which World Para Athletics treats the issue of performance enhancing technologies and the importance of ensuring an equal playing field. 

Source: World Para Athletics

While these rules are at an international competition level, what do clubs, competition organisers and the sport collectively need to consider when determining whether to apply the regulations (or even stricter regulations)? 

Should what is considered permitted technology on an international level be permitted for use in all other levels of competition in the sport?

Can we even be confident that the current regulations for elite international competition are achieving the correct balance at that level?

Performance Enhancing Technology Considerations

If contemplating whether performance enhancing products should be allowed, or to allow for there to be a balance between innovation and fairness, all sports, their clubs and competition organisers will need to consider the following:

• Accessibility barrier
• Comparison variables
• Human Performance vs Innovation

Accessibility

To ensure fairness in the sport, barriers to access must be taken into account that relate to:

• Number of shoes available – Is there a limited run of the shoe in each size or region? Does an athlete have access to a development shoe? 
• Sponsor obligations – Are athletes limited in their choice of shoe because sponsorship deals prevent them from running in the brand which has the better shoe?
• Cost – Is the cost prohibitive? For example, super shoes are currently more expensive than other purpose-designed shoes, at around $300+.

While performance enhancing technology is great on a number of levels, it only assists those who have access.

Ask: If one competitor accesses the next level of competition with this technology while another does not have access, is this outcome the result of human performance or due to their access to innovation?

Comparison

Where performance enhancing technology has been adopted, this can make comparing the performance of athletes from different generations problematic. As an example, in the early 2000’s super swimming suits were worn. While they were eventually banned, numerous records were set in these swimming suits, which makes it impossible to compare previous generations’ athletes with athletes competing after the ban, or against those who competed prior to it.

Ask: If this technology is permitted, how will it impact performance goal setting and record holding?

Human performance or innovation

The inclusion of some performance enhancing products or solutions can lead to questioning whether athlete performance is more about technological innovation than human endeavour. At some point technological enhancement arguably strays into the territory of technological doping, when it provides an unfair advantage.

Ask: Will it be that the best athlete wins? 

The Impact for Sponsored Athletes

At the Boston Marathon in 2020 one of the biggest races in the world for road running, the fastest time by both the US male athlete and US female athlete, was run wearing Nike Alphafly. Both athletes achieved a personal best time in the race, and not having been able to wear them previously due to the terms of their respective sponsorship agreements, had ended previous contracts (presumably at least in part) to be free to wear the Nike Alphafly.

When technology is so advanced that everyone wants to be wearing the same super shoes because they are seen as being the best or most innovative, then this will result in the brand not having to pay athletes as much to attract them, or potentially not sponsor them at all. This creates a disadvantage for athletes in that it can drive down how much they are able to earn from sponsorship. 

While the desire to win is the goal, technology like this can create genuine dilemmas. If athletes are not earning any money (or as much money) from sponsorships, this potentially inhibits their ability to train as freely as they would with the financial support of sponsorships.

Determining if the Balance is Right

If individuals are able to use technology like super shoes at a local or amateur level, does this have the potential to knock out up and coming, equally high-performing and capable athletes that may not be using this technology?

Consider Australian Olympian Sinead Diver who came to running late in life. She began running as a 33 year old after the birth of her second child, after taking part in a fun run and discovering she had a natural talent for the sport. After competing in her first marathon 4 years later, she came in as the second fastest female. After breaking world records for over 40’s, and coming in 5th place in the New York Marathon, at 44, she represented Australia in the 2020 Olympics. She was the oldest athletic competitor ever on the Australian team and came in 10th place, the fastest Australian in the event. In fact, Sinead Diver is Australia’s most successful marathoner since Commonwealth Games legend, Steve Moneghetti.

Imagine if it were today that Sinead was running in her first running race or event. In regular running shoes, while other more experienced or competitive runners were all wearing super shoes. Would she have been discovered?

And, given that these performance enhancing technologies can be prohibitively expensive, could we be at risk of missing talent in sports of all kinds at the grassroots level because we don’t have our own rules and regulations about when and how these technologies should be allowed?

For those who do not have access to, knowledge about or the ability to afford to buy such expensive shoes, given that they would not be able to compete with athletes wearing high performance shoes, do we need further regulations for super shoes? 

With most local events following the rules and regulations of World Athletics and World Para Athletics which allow access to super shoes, is it right that one junior runner competing with $300+ high performance running shoes with an indisputable edge, wins ahead of another junior runner that does not? 

If performance enhancing technologies are permitted across all levels of sport, we need to ask these questions:

• Does the use of this technology at any level of our sport create unfair assistance or advantage?
• Should these products be permitted at all levels of competition, or only some?
• What could the long-term consequences be for our club? 
• What could the long-term consequences be for our sport?

Conversations about performance enhancing technology in sport are not easy, but should be had. In the years ahead we will see continued advances in clothing, footwear and other supporting technologies and decisions will need to be made to ensure the talent pool, integrity and future of our sports are not compromised.

Article by Alexandria Anthony

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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

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On one hand, the athlete in question had experienced some mental health issues, including post-traumatic stress disorder, that figured into the athlete’s performance and would have been useful for the organisation to know, and to be able to figure into training and competition plans. On the other hand, the athlete wanted to keep that information private, in part because of how the coaches and the rest of the organisation might perceive that, and how that athlete might be perceived for future selection.

In this article, we explore what the law says about personal information, how athlete data privacy obligations can impact coaches and support staff who are looking to make informed decisions for their current and incoming athletes, and how to effectively manage privacy obligations without compromising performance.

Athlete data privacy obligations in the sporting context

The Privacy Act is in place to protect Australians’ and their personal information. The Australian Privacy Principles (or APPs) govern the standards, rights and obligations of how personal information should be managed. They concern how personal information is used and disclosed, the accountability that a particular organisation might have with respect to protecting individuals’ privacy, the integrity of personal information (including when it needs to be corrected), and the rights individuals have related to accessing their personal information. They were designed, in part, to manage the risks that have come with evolving technologies. 

The Privacy Act applies to many sports organisations as it covers all organisations that collect, use or disclose health information for the purpose of an activity performed in relation to an athlete to assess, record, maintain or improve their health. 

For those involved at any level of sport, the health of athletes is obviously integral to on-field success, and knowledge about what can and can’t be disclosed or shared is vital. It is also important for sporting organisations that collect data to be aware of their obligations to avoid data breaches, and to report any data breaches in accordance with relevant legislation. 

In all levels of sport, organisations have access to personal medical and health information. Upon member registration for a club or sporting competition, there is typically a requirement to disclose some key personal health information such as any health conditions or medical diagnoses. For sporting organisations and associations that provide medical services or share athlete data as part of their training and care plans, that information is far more comprehensive. Health information under the Privacy Act is considered to be “sensitive information” and is therefore a form of personal information which has a higher level of protection under the Privacy Act. 

At the sub-elite and elite level, it’s not uncommon for sporting organisations to have access to information about an athlete’s prior health history, as well as any past or planned health services, test results (including radiological procedures like X-rays, ultrasounds, or MRIs), prescriptions and even genetic information. 

These organisations might also collect significant performance data for each individual athlete, which could also be considered to be personal information (and in some cases highly sensitive). Performance data could range from statistics about how many tackles a player laid in a football match, to heart rate data, or data on the impact of the timing of their menstrual cycle or sleep patterns on performance. It may not always be subject to the same level of legal protection under the Privacy Act as information which is clearly “health information” (e.g. information about injuries). Nonetheless, there is a strong argument that much of this data should be considered to be “health information” and therefore protected “sensitive information” (see for example this very recent paper at pages 34-35: Getting Ahead of the Game: Athlete Data in Professional Sport). Therefore, sporting organisations also need to be conscious of their obligations in relation to performance data, as this in particular is a developing area and one that is of increasing concern to athletes. It is likely that legal obligations in this space may change in the foreseeable future, as athletes increasingly advocate for greater protection of their personal performance data.

Every sporting organisation will have differing information needs to ensure that the decisions they are making are in the best interests of both the athlete and the sporting organisation. 

Good decision making comes in part, from having access to specific sources of information. Athletes may in some circumstances have an interest in sharing their health or performance information with a sporting club or association to enable them to improve performance or be treated for an injury. In other instances, they may prefer to keep this information private given how it may be used against them, or because they are concerned about disclosure. There are many reasons why an athlete may want to keep their health or performance data private. 

So, what needs to be considered to ensure your organisation is compliant but also avoids creating risk by limiting access to important medical and health information?

Let’s look at decision making in the context of team selection.

The dilemma for coaches and selectors

Take trading players with other Clubs as an example. If a player has a history of injury, and a team is interested in making a trade to bring that player onto their team list, knowing how well the player recovered from injury is paramount in that decision to either make the trade or seek a similar player.

And that concern doesn’t just stop with physical health. If there’s a mental health issue that might be impacting a player’s performance, and it’s unknown to the team making the trade for the player, it can become a huge issue for the team that’s taken on this new player. 

If it’s an addiction issue, for example, the player might be sidelined for a time while going to rehab. Important, of course, for the player’s health and well-being, but a situation where a team that believed it was getting an asset is now in a holding pattern waiting to learn if an athlete who has now become a liability (in the sense that they are drawing a paycheck but not able to compete) will have the potential to be an asset once again.

Knowledge about a player’s health information or performance data will also be relevant when selecting athletes to a team. If a player is carrying an injury, this may be a reason for not selecting them to a team. The performance data of one athlete may be important in choosing between one athlete and the next. 

Clubs may also want to collect data for the benefit of the player. In the AFL for example, athlete health data is collected and used by clubs to treat players. But its use also extends beyond this. Under the AFL Collective Bargaining Agreement (CBA), AFL players authorise and direct the Club Medical Officer to provide a copy of all their medical records (relevant to their services as a footballer) to their AFL Club and the AFL. The medical records of all players are required to be treated as confidential, and not released to another person without the consent of the player, except in specific circumstances. This includes providing a medical history for the purpose of another Club trading for or drafting that player. However, if the player consents to provide the information to one Club, he must also consent to provide it to any other Club that is interested. Similar provisions exist in the AFLW CBA. 

Injury information is also made available on a publicly available AFL injury list. The AFL uses this information to protect player health in the future, and to assess the need for rule changes to protect players’ health. However, when information on a player’s injury goes on the league’s official injury list, if consent were not provided for this, then that’s a disclosure that would run counter to the spirit of the Privacy Act. 

That’s where securing consent can be essential in striking the needed balance. Making sure that a player’s rights under the Privacy Act are sufficiently protected, while also providing all players with a safe working environment, and keeping the public informed about what is going on with the health of players in the AFL. The information may be shared for a beneficial purpose, but it absolutely could be relied upon as a factor in that player’s trade value. As well as that player’s bargaining position when it comes time to negotiate a new contract. The information could also be highly relevant for betting agencies and punters. 

When it comes to considering an athlete’s health data and their value to the team on an ongoing basis, while it might seem a bit cynical to commodify athletes in this way, it’s a very real part of assessing athletes and making good decisions for teams. Particularly where “missing” on one key player acquisition might be the difference between making the finals or not (or whatever the goal is for the season or years ahead).

Meeting performance goals with privacy obligations

If an athlete is dealing with a mental health issue like PTSD or depression, it’s something that isn’t going to be as apparent or obvious as a knee injury or a hamstring injury. Ensuring that you have a culture of trust and respect in which athletes who might be suffering from an issue that will be more hidden and will be willing to disclose it, could be essential to ensuring the team performs at a high level. It could also be important in ensuring the athlete is provided with the appropriate treatment or support.

While it’s fascinating to think about how this issue impacts the nation’s highest-profile athletes, privacy issues regarding health information reaches far beyond which professional players on the trading block might be affected, or which athletes should be selected to a team.

Even for youth sporting organisations, being conscious of the Privacy Act and what it requires should be a key factor in how by-laws are maintained, how new coaches are onboarded, and how parents of athletes should be communicated with before and during the season.

What are your participant or athlete data privacy obligations?

Organisations seeking to be compliant with the Privacy Act obligations should consider regular reviews of their policies and procedures to ensure they are drafted to support both their athletes and the team or club goals. With developments in technology, the types of data available and the legal obligations in relation to this are likely to continue to change.

Any organisation that collects, uses, manages and discloses this type of private medical information needs to ensure that all internal policies and procedures are up to date and are easy to understand to ensure they will be effectively applied. The next step is the roll out of this information to the coaching and support staff to ensure they are aware of their obligations in regards to maintaining the privacy of health and performance data. Consent will need to be obtained for athlete health data to be collected, used and disclosed, even where this is used for the purpose of providing a health service to the individual. 

For all sporting organisations, it’s imperative that everyone involved in the collection, use, transfer or disclosure of medical information is aware of the obligations. And that contracts factor in these privacy obligations and the rights of the players, but also provide for consent to access certain information that will help coaches help their athletes to maintain and enhance their competitiveness and for organisations to reasonably assess not only athletes’ potential, but also their progress.

For all of these reasons, and to ensure that athletes feel comfortable and willing to share as much information as required, it’s important to ensure that your sporting organisation is taking appropriate steps to ensure it is protecting and maintaining the privacy of athlete health information (and in some cases performance data), and that it is obtaining appropriate consent where disclosure of information is necessary.

Article by Alexandria Anthony

Related articles: Performance Enhancing Technology in Sport: Considerations for Decision Makers at all Levels of Sport

Our team specialises in working with sporting organisations of all sizes, across all capital cities and regions of Australia. We focus on managing and minimising your risk, so you can focus on your sport. To enquire about our services, fill in this form or call our office on (03) 9642 0435.

Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

The post Athlete Data Privacy and Performance appeared first on Sportslawyer - Experts in Sports Law Melbourne & Australia-wide.

Member protection is a key element in all sporting environments. As people involved in sporting organisations and associations it is our responsibility to promote safe and fair practices to protect members from discrimination, abuse, harassment, child protection issues or any inappropriate behaviours.

To guarantee member protection in sporting organisations and associations, Sport Australia, requires all sports funded by the government to adopt additional specific policies in addition to any existing policies. If you receive this funding, your organisation will need to ensure these policies are up-to-date for both compliance and regulatory purposes.

In this article, we will explore with more detail the purpose and risk mitigation benefits a considered Member Protection Policy can have for sporting organisations and associations of all sizes.

What Is a Member Protection Policy?

A Member Protection Policy (MPP) is a document that seeks to guide ethical and informed decision-making in promoting behaviours that guarantee a safe and fair sporting environment for all participants in all levels of sports.

Member Protection Policies are implemented on two levels. At a sporting association level and on a club or league level.

In recent years there have been significant changes to what falls specifically into ‘member protection’. Previously child safeguarding was part of member protection whereas now it may have its own policy. In its application, however, the Member Protection Policy cross-references other policies, and in reality, it is a number of policies that are often collectively referred to as a Member Protection Policy.

Taking this into account, broadly speaking, the MPP includes the Member Protection Policy itself as well as codes and policies such as the Investigation and Complaints Process. It also cross-references the Child Safe Policy, Human Resource Policy, Social Media Policy and any Codes of Conduct such as the parents’ code of behaviour, coaches’ code of behaviour, athletes’ code of behaviour, etc.

The main Member Protection Policy, however, contains codes for inappropriate behaviours such as abuse, bullying, harassment, sexual misconduct, unlawful discrimination, victimisation and vilification.

Generally, the policy acts as a tool for promoting professionalism in the sport by eliminating unfair participant treatment and championing best practices that promote a positive sporting culture. As such, the policy implementation process must be fair (such as any person investigated for a breach must be presumed innocent) and it must all be handled confidentially.

The main MPP policy covers a number of specific prohibited behaviours. We have listed some of them below:

Abuse

• Physical abuse and assault – Hitting, destroying property, food deprivation, etc.
• Sexual abuse – Assault, rape, unwanted touching, sexual jokes, etc.
• Emotional abuse – Intimidation, humiliation, intentional and repeated embarrassment in public
• Verbal abuse – Repeated insults, body shaming, aggressive yelling, name-calling, etc.
• Financial abuse – Forbidding someone from working, restricting access to bank accounts, etc.

Bullying

• Keeping someone out of a group (online or offline)
• Harassing someone based on their sex, religion, disability, etc.
• Taking advantage of any power over another person

Harassment 

• Insulting jokes about a racial group
• Derogatory comments about someone’s race
• Sending explicit messages or emails, etc.

Sexual Misconduct

• Staring or leering
• Unwelcome touching
• Requests for sex
• Taunts based on sex
• Suggestive comments or jokes, etc.

Unlawful Discrimination Based on;

• Age
• Race or ethnicity
• Disability
• Sex, marital status, pregnancy, etc.

Victimisation

• Alteration of an employee’s duties or position because they complained about something
• Repeated denial of opportunity without merit
• Dismissal of an employee or volunteer in response to them filing a complaint, etc.

Vilification

• Publishing malicious racial claims
• Repeated abuse about a person’s race or religion
• Painting someone’s race or religion in a bad light, etc.

What else is under the member protection umbrella?

As mentioned above there are a number of areas that fall into broader member protection, including child protection, social media and the investigation and complaints process.

Various ‘working with children checks’ and laws in the relevant states or territories will need to be followed so that only suitably qualified and safe adults work with children in the sport, providing a safe, inclusive and protected environment for participants. 

Social media policies on both a national, state, local or community level can assist in avoiding anyone connected to your organisation, bringing your sport or organisation into disrepute. A potential breach can eventuate in many ways but often by way of comments or abuse.

Well-known examples of social media implications that brought the sport, and the organisations they are connected to, into disrepute, include former US Olympian Michael Phelps and Australian Olympian Stephanie Rice. Michael Phelps was punished for inadvertently posting pictures of himself on an intravenous drip (doping) and smoking a bong, leading to prosecutions. Stephanie Rice, an Olympic Swimming multiple gold medallist, used homophobic language on social media after excitement about her then-boyfriend’s international rugby win against South Africa. She reportedly lost $500,000.00 in sponsorships, amongst other punishments. These mistakes are easily made. If the media-trained people of sport have had these lapses in judgment, then the risk is real for everyday amateur participants and members of your organisation.

Additionally, athletes and officials often don’t realise that comments made on social media about a sports decision whether “in play” or not, may be seen by management even where a person’s social media settings are private. For this reason, social media conduct must also be addressed and integrated into the broader MPP, and the subject of education to your members.

In the event there is a breach (or potential breach) of any of these member protection policies in place, protection is to be offered to all members. 

The investigation and tribunal process set out in the MPP needs to be carefully followed, providing participants in the process with procedural fairness. A balance needs to be struck between the interests of the complainant, say a victim of alleged child abuse, and the respondent, who rightly is entitled to be presumed not guilty. 

Standing down or suspending an official or coach can lead to inferences that they are guilty of, for example, of child abuse which can ruin a career. Caution needs to be taken to avoid a defamation claim against your people and organisation in these circumstances. 

The complaints and investigation process can sometimes include mediation (only where appropriate), and referral to a disciplinary tribunal where necessary.

When our team are called in to provide specialist assistance or advice with the investigation of potential breaches of any of these policies, we see where out-of-date policies have exposed the organisation and its members to unnecessary risk.

For smaller sports, particularly those with outdated policies or constitutions, a Member Protection Policy is a very useful tool to assist in the prosecution of a person who brings the sport into disrepute if none of the other policies cover the adverse behaviour that is being sought to be disciplined. 

Minimising Risk in Your Sporting Club, Organisation or Association 

Risk is apparent in every sporting organisation and association. There’s always an aspect of uncertainty in every activity. More so, the risk of litigation is ever so high. Therefore, it’s paramount to have risk management strategies in place to control risk exposure in activities and protect participants, members, and volunteers. 

Some of the risks include:

• Physical risks – Injuries (to public and participants)
• Financial risks – Costs related to injuries, increased insurance premiums, etc.
• Legal risks – Legal action costs for breaching duty of care, etc.

Additional Risk for National Organisations

Since 2016, National sporting federations must demonstrate that they have adopted a Member Protection Policy that is compliant if they wish to nominate athletes for the Australian Olympic Games team. If the association is found to be non-compliant, athletes are ineligible for nomination.

Source: Olympic Team Nomination & Selection By-Law (2020)

Other than reducing the risk of litigation, minimising these types of risks in your sporting organisation or association provides the following benefits:

• Helps with defining insurance needs
• Ensures compliance
• Balances opportunity and risk
• Assists with audit preparation
• Allows for better decision-making

As a sports club, organisation or association, it is paramount that your Member Protection Policy is kept up to date as a way of instituting mechanisms to protect members. Having the right policies in place ensures compliance and mitigates compliance-related risks. 

In the event there is a potential or actual breach of any policy, complaints must be managed very carefully. Meaning, the investigator must have no conflict of interest. Where this may be unclear, or where the matter is complex or serious, this is where we can assist to ensure there are no steps missed in the process, and there can be no suggestions of a conflict of interest.

Could Your Member Protection Policy Be Out of Date?

A Member Protection Policy is a generally current document that typically needs to be updated every two years. If it is out of date, it can pose a risk to your sporting club, league, organisation or association.

Every government-funded sporting organisation is required to ensure its member protection policy is up to date. Changes in sporting regulations are frequent, and every organisation should keep up for compliance purposes. 

Generally, the Australian government sporting agency, Sport Australia, updates the member protection policy every two years. Therefore, supported organisations and associations must reflect these changes in these policies to continue benefiting from government funding. The recent update of the Child Safe Policy plus other regulations sets the urgency for an immediate revision of out-of-date policies to reflect new changes.

Article by Paul Horvath

Related Articles: High Performance Training and Child Protection in Sport Coaching

Getting Child Safe: An Overview of Australia’s Child Safe Principles for Sports Organisations

Sports Investigations: Allegations Against Coaches, Administrators & Officials

Ethics in Sports: Mitigating Risk for Sports Organisations

Sports Investigations: Allegations Against Coaches, Administrators & Officials

At SportsLawyer we are specialists in member protection policies for sporting organisations of all sizes, across all capital cities and regions of Australia. We partner with your club, league, organisation or association to review existing policies or create up-to-date policies that meet your needs. We can also assist with the delivery and education of these policies to ensure the policies are not just in place, but can be clearly followed. Get in touch with our team, discuss how we can work together for the success of your sporting club or organisation here.

Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

The post Member Protection Policy: Could Yours Be Out of Date? appeared first on Sportslawyer - Experts in Sports Law Melbourne & Australia-wide.

In this article, we take a look at the benefits of gender diversity and transgender inclusion in sports, the legal and financial consequences for sporting clubs, leagues, organisations and associations if they are found to discriminate, what leading sporting organisations and associations in Australia are doing in this area as well as what is happening globally.

We also address the concerns raised about transgender athletes in competitive sport on both an international and community level. We will briefly touch on, but not explore in detail, the related but separate issue of the participation of intersex athletes.

This is a big topic, and it is one that boards and committee members must be aware of and take action to seek tailored advice about, specific to the size of your organisation, which state or territory you are in, and the nuances of your sport.

Before exploring this topic, it is vital we cover off on some of the language used throughout this article, for those who are unfamiliar with the terms used.

Key Terms Relating To Gender Diversity & Transgender Inclusion

Affirmed Gender – an individual’s gender as opposed to the sex they were assigned at birth.

Cisgender – people whose gender corresponds to the sex they were assigned at birth.

Cis female – a person who identifies as female which is the same as the sex they were assigned at birth.

Cis male – a person who identifies as male which is the same as the sex they were assigned at birth.

Gender diverse – a term given when identity, role, interests, hobbies and expression differ from cultural norms prescribed for people of a particular sex.

Intersex – people whose genetic, hormonal or physical composition differs from medical and conventional understanding of male and female bodies.

LGBTIQA+ – a term given to a range of gender-diverse identities and experiences. 

Trans/Transgender – an umbrella term for people whose gender identity does not correspond to the sex they were assigned at birth.

Trans female / Trans woman – an adult who was assigned male at birth but whose gender identity is female.

Trans male / Trans man – an adult who was assigned female at birth but whose gender identity is male.

What Do Federal and State/Territory Laws Say?

Transgender and gender diverse inclusion in sports is connected to both federal and state/territory laws. While discrimination is at the core of this topic, it is important to know that within the relevant legislations, there may be exemptions and exceptions that allow for discrimination in some situations. 

Federal Law

The federal Sex Discrimination Act 1984 prohibits unlawful discrimination on the basis of sex and gender identity in certain areas of public life. This includes most larger sports clubs (although this specific legislation only classes a club by if it sells or supplies liquor for consumption on its premises, so it will not affect all sports clubs). It is also unlawful to discriminate in the provision of goods, services and facilities (which will cover most sports clubs) and to request information from a person for the purpose of discriminating against them.

There are some exceptions though. The Sex Discrimination Act may not prohibit discrimination in the case of volunteers and not-for-profit sports associations, such as a small local soccer club. Read this whole article though as this is only one of the relevant pieces of legislation, and even where there is no legal obligation, it will still be important to avoid discrimination for a range of reasons.

Currently, there are many ways in which a sporting club, organisation or associate might discriminate against a person on the basis of their gender: 

• Uniforms (e.g. requiring people to wear a uniform that is inconsistent with their affirmed gender)
• Facilities (e.g. change rooms/toilets)
• Membership (e.g. by restricting membership based on gender or excluding trans athletes)
• Requiring people to be categorised into a gender/provide evidence of their gender at birth
• Preventing people from participating in their affirmed gender (e.g. because their sex at birth might mean that they have physical advantages, or for blatantly discriminatory reasons)

Where the members or athletes are over 12 years of age, clubs are permitted to discriminate on the basis of sex, gender identity or intersex status by excluding athletes from participation in competitive sporting activities in which the strength, stamina or physique of competitors is relevant. 

This can potentially create difficulties for a club, organisation or association that wants to ensure fair competition for all athletes, and one which is also free of discrimination. 

Potentially adding to the complication is the recently introduced Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022, which was introduced in February 2022 by Claire Chandler, a Senator for Tasmania. The Bill seeks to amend the Australian Sports Commission Act 1989 (Cth) and the Sex Discrimination Act to specifically provide that it is not unlawful to exclude persons of one sex from participation in any sporting activity intended for persons of a different sex. It would broaden the current exemption referring to strength, stamina and physique in competitive sporting activities to allow discrimination against transgender women in a much broader set of circumstances. This would constitute a significant change if the Bill were to pass both houses without amendment. 

If the Sex Discrimination Act does not apply to your sporting organisation, State or Territory laws may apply.

State or Territory Laws

Where there may be exceptions or exemptions in the Sex Discrimination Act, you must also take into account the relevant legislation such as the Anti-Discrimination Act or Equal Opportunity Act, in your state or territory.

For instance, in Victoria, the Equal Opportunity Act applies very broadly in the context of sport. It is not restricted to clubs or associations that sell liquor and it applies to voluntary organisations. It does contain some exceptions for competitive sporting activities, for example, where strength, stamina and physique are relevant. However, this leaves a range of sporting activities where that will not provide an exception.

The question that every club needs to be asking and deciding upon is, where will your club, organisation, competition or association draw the line in regard to ‘where strength, stamina and physique’ are relevant? 

Transgender Athletes In Competitive Sport

As we know, there are significant physiological differences between men and women, which provide the average man with a significant advantage over the average woman. These differences can also mean that in contact sports, women may be at a greater risk of injury when competing against men. For these reasons, it has been widely recognised internationally, including recognition from the Court of Arbitration for Sport, that cisgender women should be able to compete separately to cisgender men. This is important in encouraging women to engage in sport, and for them being able to participate or compete safely. 

This can create a problem when you have transgender women wanting to compete in a competitive or contact sport with cisgender women. Whose rights should win out? According to Senator Chandler, seemingly it should always be the rights of cisgender women. However, under current laws and the policies of most major sporting organisations, the answer is much more nuanced than that.

In some instances sports have imposed requirements on trans female athletes to engage in testosterone suppression. This may already be a part of their transition. Hormone therapy/testosterone suppression may not eliminate all advantages that a trans female athlete may experience, and may not having a lasting impact, but it may take a significant toll on the trans female athlete, especially where they have to continue to undergo testing to demonstrate that they are within limits, and the limits imposed by the sporting organisation may be more restrictive than would be normally if they were not an athlete and were simply undergoing hormone therapy.

The other consideration is that even within a female or male category, there will be significant natural physiological differences between one athlete compared to another (e.g. height, coordination). Given that, a trans athlete could reasonably argue that these differences are no more significant than when comparing transgender athletes. When that is taken into account, it begs the question: why do we discriminate on the basis of gender and not on the basis of height or weight for example?

Inclusion Policies In Play In Australia

In August 2020, Little Athletics Australia published its Inclusion Policy for Gender Diversity. It details its position that members under 12 can take part and compete in age groups, based on the gender identity they registered as, for the duration of the year registered. Over 12 years of age, athletes may take part and compete in the gender they choose, as long as they register as that gender in that year and that their gender identity is consistent with their gender identity in other aspects of everyday life.

The AFL published their Gender Diversity Policy in October 2020. The policy states that:

“The AFL is committed to an inclusive culture and encouraging the participation of gender diverse people at all ages, levels and all roles within the game, including players, supporters, umpires, coaches and other team and league officials.”

The policy document also includes myth busting about safety risks of transgender players on the AFL field, making their stance on gender diversity and inclusion very clear. This policy applies in relation to Community level sport – at the level of the AFLW and first grade State league competitions (e.g. the VFLW), there are restrictions on trans women’s inclusion, and requirements to meet testosterone thresholds below 5 nmol/L.

Swimming Australia is also currently developing its National Trans and Gender Diversity Policy.

Inclusion & Gender Diversity Internationally

World Rugby has divided its guidelines into three separate summaries. One for transgender women, one for transgender men and another for non-binary players. Its guidelines only allow trans females to play Women’s Rugby where there is no contact.

The International Olympic Committee historically treated testosterone levels as the primary way in which it determined whether an athlete could compete against men or against women. Under the previous policy, if a trans female’s testosterone levels were below a certain level for 12 months before the competition, she could compete in the category she identifies as. Interestingly though, it seems that testosterone levels can be high for some cis female athletes with hyperandrogenism or intersex athletes (e.g. Dutee Chand and Caster Semenya) that have considered themselves to be female for most of their lives, meaning they have been restricted from competing in some female competitions despite being assigned female at birth. The IOC’s new Guidelines, introduced in November 2022, take a more inclusion-focused approach and reverse the previous IOC approach that focused on testosterone levels. The emphasis is now on the health and well-being of athletes, and there is no longer a requirement to lower testosterone levels. Any restrictions on the eligibility or inclusion of transgender athletes now have to be applied by the International Federation for each specific sport, and justified by credible research demonstrating that there is a disproportionate advantage or safety risk present.

What will the policy be in your sporting community?

What Does This Mean For Competitions In Your Sporting Community?

It can be difficult to apply the competitive sporting activity exemptions and exceptions.

For example, would a ‘Fun Run’ count as a competitive sporting activity if prizes are awarded to the first three “Male” and “Female” competitors, but the overall purpose of the activity is as a ‘Fun Run’? 

Do you run one competition for everyone?

Do you need to include a third category to allow for this? 

If you do run a third category, does this cause issues for, for example, a trans woman who feels discriminated against because she is required to compete in the ‘other’ category rather than in her affirmed gender. Versus, if trans women are allowed to compete in the same category as cisgender women, will this discourage cisgender women from participating if all the top places and prizes go to transgender women because of natural physical or physiological advantages? While this may not be an issue now, with the increasing awareness and inclusion of transgender individuals in society, the likelihood (and the preferable outcome) is that there will be more transgender athletes competing in sport. While the increased participation of trangender athletes in sport is an important outcome that sporting clubs should be striving for, it is important that appropriate policies are put in place to allow this to happen, while also recognising the importance of encouraging cisgender women’s participation. 

For your board, if the conversation hasn’t already started, it must become a priority as developing it may take some time. Decisions will need to be made for the athletes and members as well as the protection of your organisation.

Purpose Of A Gender Diversity Policy

The benefits and purpose of a gender diversity policy is to:

• Help a transgender or gender diverse person identify a sporting organisation that will welcome them 
• Encourage a transgender or gender diverse player to remain engaged in sport throughout their transition or affirmation 
• Provide guidance to members, participants, staff and volunteers at a sporting organisation on how to include transgender and gender diverse participants and how to respond appropriately to any issues that may arise, and therefore prevent legal action.

You may elect to have a new, separate policy or have other policies reviewed and updated such as any current Inclusion Policy or Member Protection Policy, as well as the Constitution and any Codes of Conduct. 

Consequences of Not Having A Gender Diversity Policy in Action

If a trans female person is not permitted to play, is your club up for discrimination?

What happens if someone is injured as a result of a trans female’s participation?

There are health or injury risks to consider, in the event that someone is hurt as a result of an injury sustained while playing against or alongside a transgender player. Potentially, there is the risk of legal action resulting in personal injury claims.

Conversely, there is also risk of breaching discrimination laws or facing claims of discrimination. 

The most significant risk in the short-term for every sport club, league, organisation, competition or association is if you do not have any gender diversity policy in place, or, inclusions in existing policies relating to gender diversity and transgender inclusion.

However, this is not just about the risk of facing a discrimination case. This is about ensuring that our sport communities are inclusive. That sport is accessible to all. The inclusion of LGBTIQA+ people in sport is extremely important. Young LGBTIQA+ individuals are particularly vulnerable to mental health and wellbeing concerns. Transgender people are at a high risk of suicide. Inclusion in sport can be very important in improving their mental health, while discrimination is likely to worsen any mental health issues. Equally, inclusive environments have a direct benefit on the health and wellbeing of all people within the sporting community.

Why Trans and Gender Diverse Inclusion Is An Overdue Conversation 

Sport Australia, as part of its Inclusive Sport Framework, have made its position clear by providing information specific to trans and gender diverse inclusion. In its guidelines for the inclusion of transgender and gender diverse people in sport, Sport Australia provides a checklist ‘designed to help sporting organisations, their staff and volunteers to identify practical steps that they can take to promote the inclusion of transgender and gender diverse people in sport.’

This is an Australian Government initiative. The checklist details practical steps to promote the inclusion of gender diverse and transgender people in sport. It addresses considerations for:

• A publicly available inclusion policy
• Uniforms
• Zero-tolerance policy for harassment
• Privacy and confidentiality of personal information
• Inclusively designed facilities
• Education and training of staff, players, volunteers and members

Importantly, the checklist asks the following question:

“If you plan to rely on the ‘competitive sporting activity’ exemption, does your sporting organisation have an established, clear, written and publicly available policy that explains how the exemption will be assessed?”

Gender Diversity And Transgender Inclusion In Sports

We know that for boards and sporting organisations and associations there is much to consider. However, it is clear that this is no longer a consideration that can be set aside in the ‘too hard’ basket, or set aside for later. The time to get the ball rolling is now. 

Given the nature of this topic and the resistance that may exist in some communities, the best place to start is by having your board meet with specialists who have a solid understanding of anti-discrimination laws, employment law and also work closely with sporting organisations of all sizes, every day.

We also know that your board may benefit from assistance with educating your community about the necessity to develop this policy and eventually, the roll-out of the policy itself with coaches, management and the community at large.In helping boards develop their policy for gender diversity and transgender inclusion in sports, we identify what the specific legal issues are, take into account the nuances of your sport and the competing priorities that exist, to help you get the balance right for your organisation.

Article by Alexandria Anthony

Related articles: How Is It Possible That Bullying & Harassment In Sport Persists Today?

Gender Diversity & Transgender Inclusion In Sports: An Overdue Conversation

Discrimination Against Women in Sport? The Participation of Women in Sports Competition

At SportsLawyer we are specialists in anti-discrimination laws, gender diversity reviews and policy development. Our team specialises in working with sporting organisations of all sizes, across all capital cities and regions of Australia. We focus on managing and minimising your risk, so you can focus on your sport. 

Importantly, we also assist with the delivery and education of these policies to ensure the policies are not just in place, but can be clearly followed. Get in touch with our team to discuss how we can work together for the success of your sporting club or organisation here.

Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

The post Gender Diversity & Transgender Inclusion In Sports: An Overdue Conversation appeared first on Sportslawyer - Experts in Sports Law Melbourne & Australia-wide.

Late last year, we saw star Collingwood midfielder Dayne Beams step away from the AFL indefinitely in order to focus on his mental health. While we hear more and more about the pressures of elite sport and see an increasing number of high-profile athletes like Dayne Beams take time away from their chosen sport to address mental health conditions, we also see the pressures of performance becoming an increasing issue for those in lower levels of sport as club sport becomes more of a commercialised operation. Pressures to achieve success can come from coaching staff and also from supporters, who may be quick to point out poor performances.

Sports clubs can take a proactive role to ensure the mental health of athletes is looked after by doing a number of things.

These may include providing a supportive environment where positive constructive reinforcement to athletes is practised. For athletes who miss out on selection in a team, processes should be in place to appropriately debrief those athletes in order to ensure that they know why they missed out and to clearly state what they are to work on if they are seeking selection in the future. Those at higher levels of competition, where performance pressure is often at its greatest, ought to also be provided with adequate time away from the sport during the offseason and also during the week during the season.

Off the field, sports clubs ought to have an Anti-Bullying and Harassment Policy which clearly sets out the club’s expectations in relation to such behaviour and which provides information to athletes and members on who to report bullying behaviour to within the club and the procedure in which reports will be investigated and dealt with. Clubs should also ensure their Code of Conduct clearly sets out the club’s expectations with respect to the behaviour of employees, members and athletes.

As some forms of bullying may amount to harassment or discrimination under federal and state legislation and therefore could be illegal, it is important that clubs have appropriate policies in place both in order to deter such behaviour from occurring and to discharge the club’s duty of care to athletes who are in fact harassed or discriminated against.

If your club needs assistance in writing or updating its policies, please contact Paul Horvath  at SportsLawyer on 9642 0435 or reach out to us at info@sportslawyer.com.au.  Nothing in this article should be relied on as legal advice.   The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.

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