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Touchline • Issue 15 • 29
Clubs have already recognised the potential for liability. Media
reports indicate that one club with players at risk of being
banned from the sport for taking banned substances at the
direction of the club’s sports scientist has offered players a 6
month suspension deal which the club is seeking to broker with
ASADA. Players who accept the deal to voluntarily step down
and agree to waive all rights to sue the club and its board are to
be offered financial incentives including:
1.
A contract extension on their current contracts to
compensate sitting out this season.
2. Remuneration of any representative payments or
bonuses earned in the previous year.
3. Full pay while suspended.
A club involved in performance enhancement programmes
in which players are prescribed supplements or prohibited
substances could potentially be exposed to the following claims
by the affected player:
1.
Claims for damages for personal injury arising from
potentially adverse effects of prohibited substances
on the player’s health. The long term effects of
supplements, including peptides and hormones, on
an athlete’s health are unknown and, like prohibited
substances, these may result in serious health
concerns.
2.
Claims for economic loss byplayerswho are suspended
for doping. The majority of modern professional
athletes, including those playing in the NRL and AFL,
are amongst the nation’s highest income earners. The
relatively short careers of professional sportspeople
means that a ban significantly impacts their earning
capacity and may jeopardise their ability to return
to professional competition. Athletes stand to suffer
loss of salary and sponsorship deals as well as
having their reputation tarnished and losing the
enjoyment gained from participation. The quantum
of such claims, depending on the demonstrated
earning power of the affected player is potentially
significant.
Sports Scientists
Professional disciplinary action?
Unlike health professionals, sports scientists are not regulated
by the Australian Health Practitioner Regulation Agency.
Consequently, they are not subject to the Health Practitioner
Regulation National Law legislation.
Despite the existence of professional organisations for sports
scientists, there is no regulation or requirement for individuals
to be members of a central professional body in order to hold
the themselves out as a sports scientist. One practical effect
of this regulatory vacuum is that unaccredited sports scientists
cannot be disciplined or deregistered. From the perspective of
a club with an eye on risk management, the absence of a formal
accreditation process or regulatory body makes it difficult for
a club to verify the credentials of a sports scientist who they
may be contemplating engaging to work with their players. In
the context of a claim for damages by an affected player, this
may hamper a club’s ability to persuade the court that it took
reasonable steps to verify the qualifications of a sports scientist
before engaging them to work with their players.
As well as verifying the professional credentials of sports
scientists, clubs should also satisfy themselves that such
individuals carry appropriate professional indemnity insurance
that would respond to claims described above. In the absence of
such insurance, a club could potentially find itself left holding
the (liability) ball for the consequences of a sports scientist’s
programmes or recommendations.
Regardless of the lack of regulation, it is likely that a sports
scientist would owe a duty of care to players under their
supervision due to the potential impact of the scientist’s
recommendations upon the player’s health and earning capacity.
There may be some conjecture as to where a sports scientist’s
duty lies, whether it is to the athlete to ensure their health or
to the sports clubs as their employer to secure results, which at
times may be in conflict.
POTENTIAL LIABILITY
TO PLAYERS
WHERE DOES LIABILITY LIE?
LIABILITY IN NEGLIGENCE