On 20 September 2021, National Basketball League (NBL) club, the New Zealand Breakers, announced that it had mutually parted ways with its player Tai Webster due to his refusal to be vaccinated for COVID-19. The Breakers justified the decision based on that fact that “without being vaccinated he will not have freedom of travel which would allow him to play for us this season”.
This article aims to examine whether it is lawful for sports clubs and sporting organisations to mandate the COVID-19 vaccine for their athletes.
Vaccine Mandates in Sport
While the Breakers have chosen not to explicitly mandate the COVID-19 vaccine due to its support of “each player’s freedom of choice in regards to the vaccine”, it has effectively done so anyway by mutually ending its contract with Tai Webster. This may be due to circumstances beyond the club’s control, such as laws and the practicalities of professional sport. Indeed, the NBL’s Commissioner Jeremy Loeliger stated the following when explaining the NBL’s decision not mandate the vaccine for its athletes:
“It may be that those who don’t get vaccinated won’t be able to travel between states and countries, or even enter certain venues, and therefore won’t be able to participate in some games when the season begins…
Individuals that decide not to get vaccinated could be subjected to different rules depending on various government protocols and restrictions.”
In saying this, mandating the COVID-19 vaccine for athletes within a sports club or sporting organisation is likely to be lawful. A court or tribunal is likely to deem a vaccine mandate to be “lawful and reasonable” due to:
- the fact it is an inherent requirement of a professional athlete’s job that they will need to travel interstate or internationally to be able to successfully perform, and being able travel in these ways will likely be contingent on an athlete being vaccinated;
- professional athletes are highly likely to interact with other athletes, officials and members of the public, and therefore have an increased risk of being infected with, and transmitting, the virus;
- Australia’s national plan to reopen society at 70-80% double doses of vaccination for the eligible population will lead to an exponential increase in community transmission of the virus;
- the effectiveness of vaccines in reducing risk of the transmission and severity of illness of contracting coronavirus; and
- the need to contribute to the prevention of Australia’s health systems being overwhelmed with hospitalisations and deaths.
Further information on vaccine mandates can be found here:
https://www.phsolicitor.com.au/can-the-covid-vaccine-be-made-compulsory-for-employees/
Discrimination
While the reasons behind Tai Webster’s decision not to be vaccinated for COVID-19 are unclear, some athletes may refuse to be vaccinated due to legitimate health reasons or their religious beliefs. It could therefore be argued that mandating the COVID-19 vaccine is a form of indirect discrimination[1] against these athletes.
However, this argument is unlikely to be accepted by a court or tribunal. Whilst discrimination laws serve to protect people from discrimination on the basis of their disability or religion, these laws do not prevent indirect discrimination where the discrimination is reasonable in the circumstances.
It is likely that the “discriminatory” aspects of vaccine mandates for professional athletes will be deemed reasonable (and therefore lawful) in the current national and international context, in which COVID-19 remains a serious health issue and vaccination is increasingly available. If a vaccine mandate were unlawful and athletes were able to travel nationally and internationally without vaccination, this could cause an exponential rise in case numbers, hospitalisations and deaths or force states back into lockdowns. It is therefore justifiable for sports clubs and sporting organisations to refuse to allow athletes to compete if they fail to comply with a vaccine mandate.
It should be further noted that if a public health order or legislation is passed to prevent athletes from competing if they have not been vaccinated, this will also act as a complete defence to any prospective discrimination claim by an athlete against a sporting organisation.
Work Health and Safety Laws
Furthermore, businesses, including sports clubs and sporting organisations, could potentially be breaking the law by not mandating the COVID-19 vaccine for its athletes. This is because employers have a responsibility to take reasonable steps to ensure the health and safety of their employees under the Work Health and Safety Act 2011 (Cth) (WHS Act).
Section 19(1) of the WHS Act states:
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged by the person; and
- workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
Section 19(2) of the WHS Act states:
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
As vaccines have been proven to reduce the transmission of COVID-19 and the severity of an infection, employers may be deemed to have breached the WHS Act by not mandating the vaccine. Therefore, mandating the COVID-19 vaccine to comply with the WHS Act could potentially act as a defence against a prospective discrimination argument.
Conclusion
SportsLawyer understands the challenges that employers, including sporting organisations, and athletes are facing in light of the coronavirus vaccine rollout. If you need assistance, please contact our sports law team at SportsLawyer on (03) 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.
Sources:
Work Health and Safety Act 2011 (Cth)
https://7news.com.au/sport/basketball/nbls-breakers-cut-anti-vax-player-webster-c-4014781
[1] For more information on indirect discrimination and how this differs from direct discrimination, please refer to https://www.phsolicitor.com.au/legal-services/employment-law/discrimination/.
