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Good Governance of Sport - or blank checks for a rainy day?

As an industry, sports is undergoing transformational changes. The increased use of biometric athlete data, emphasis on inclusion and diversity, and athlete activism among other things present significant legal challenges which are largely unchecked.

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14 June 2023
Chloe Hosking - Synergy Law, Paralegal
5 minutes

As an industry, sports is undergoing transformational changes. The increased use of biometric athlete data, emphasis on inclusion and diversity, and athlete activism among other things present significant legal challenges which are largely unchecked

As a professional cyclist, I have benefited from this transformation. I raced at the highest level of my sport for thirteen years. I watched the sport develop and grow around me, from small things like how many team buses were in the car park, to how often our races were televised on global television. But as I have witnessed these changes, I haven't seen the same professionalisation in the governance of sport.

Cycling, like many other sports, has failed to keep up with the transformation of the sporting industry. In the first four months of 2023 alone, the cycling industry has dealt with controversies around wearable technology, unpaid wages, concussion, and the inclusion of transgender women in elite competition.

These all present potential legal issues.

Cycling, and sports more generally, need not look far for case studies of risk, exposure, and liability.

A class action was recently commenced in Australia against the AFL, brought by former footballers who claim to have been permanently damaged by concussions and other head knocks.

Across the pond, another class action suit is underway in the United Kingdom brought by Rugby players across various codes against World Rugby, Rugby Football Union, and Wales Rugby.

Having recognised the risks, both to players and their chequebooks, World Rugby is now one of the world leaders in concussion protocols in sports, going some way to mitigate and limit their liability into the future. However, this reactive response does little to limit damage now - both human and monetary.

In January of this year, after falling during a stage of the Tour Down Under, James Knox underwent a five-minute concussion assessment. After the assessment from the team doctor, he was assisted back to the peloton by 'drafting' behind his team car. Later that afternoon he was disqualified from the race. There was no concession made by the race organiser for a participant undergoing an 'in race' medical assessment.

This video from 2017 Tour of California shows the dangers of immediately re-entering a bike race without a proper medical assessment. In a sport where finishing a stage is required to start the next, protocols need to be established which balance participant safety and the integrity of competition.

Overwhelmingly, sport governing bodies have not kept pace with the rapid developments of the sporting industry. they are exposing themselves to unnecessary legal risks and failing to act in the best interests of their members.

It's not enough to implement protocols once a problem arises. The employment sector in Australia offers an easy comparison. The sector has positive duties. For example, employers must take all reasonable steps to prevent sexual harassment in the workplace. Sport should consider adopting this positive duty approach. They need to focus on upstream practices and change policy and procedure.

One European based cycling manager recently discussed the athlete 'data grabbing' currently being undertaken in professional cycling and stated matter-of-factly that as an athlete, even if you ask teams to delete your data, there's almost no way they would

In a jurisdiction that is subject to the General Data Protection Regulations (GDPR) this attitude presents real risk and exposure to teams and their sponsors. GDPR fines are designed to make non-compliance a costly mistake for both large and small businesses. Infringements could result in a fine of up to €20 million, or 4% of the organisation's worldwide annual revenue from the preceding financial year, whichever amount is higher. With a review of the Australian Privacy Act (Cth)imminent and speculation that it will move towards a GDPR-esque model Australian sport organisations should take one note.

Sports needs to understand that by identifying risks and taking real steps to address them now it will benefit them later. They need to adopt proactive risk management strategies. Government agencies and private corporations employ these strategies regularly to monitor compliance and identify areas where they could strengthen their policies, procedures, regulations, and guidelines to adequately address current and anticipated risks,

Sport should do the same, endeavouring to act proactively, rather than reactively, to industry changes.

The professional sector has for a long time looked to sports to learn what is involved in creating high-performing environments. Sports should not turn to business. Regular audits of policies and procedures and assessment of how these policies and procedures respond to and interact with an evolving and rapidly changing industry should become part of the sporting landscape.

By undertaking regular internal audits that respond to industry changes like the proliferation of athlete data farming or the inclusion, or exclusion, of transgender and DSD athletes, or by engaging outside organisations well versed and practiced in conducting compliance checks and risk assessments, sport can start to look upstream.

I am often asked what I want to do with my law degree that I am now moments away from completing. My answer is that I want to work in layer advocacy helping athletes - specifically female athletes - get the most our of their sporting careers. Part of this is ensuring that these athletes have the same securities and assurances in their workplace that all workers do. To do this, sport needs to fundamentally change how it governs. It needs to look upstream and develop policies and procedures that are robust and legally sound which protect themselves as organisations and the people who interact with them.,

It's no longer good enough (not that it ever was) to slap a band-aid on it, say she'll be right, and charge back onto the field of play. Sport must address current, and actively identify future, risks through proactive governance or set aside some blank checks for a rainy day

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