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30 • Touchline • Issue 15
It is reasonable for an athlete to expect a high standard of care
from a sports scientist in view of the degree of reliance, trust
and responsibility arising from that relationship. The extent of
that duty would be for sports scientists to take reasonable steps
to provide athletes with proper information and treatment. A
player’s ability to demonstrate a breach of this duty depends on
the conduct of the sports scientist and the player’s knowledge
of potential risks (regulatory or otherwise) associated with the
scientist’s conduct or recommendations. It is likely that a sports
scientist who provides a prohibited substance to a player in
the absence of the player’s fully informed consent would be in
breach of their duty to that player.
Professional sporting organisations in Australia are generally
incorporated bodies. Sporting clubs may be directly or
vicariously liable for the activities of the sports scientists they
have engaged to work with their players. Sporting clubs are
generally perceived to have deep pockets and would almost
certainly be the first party to be identified as a defendant by a
player allegedly adversely affected by the activities of the club’s
sports scientists.
If a player alleges their club has been negligent in the provision
of performance enhancement programmes, the affected player
must establish a relationship giving rise to a duty of care owed
by the club and that the breach of that duty was causally
connected to the injury.
In determining the existence of a duty of care, the degree to
which a club exercises control over players is relevant. Most
professional clubs have contractual relationships through
which they exercise control over their players and subject them
to codes and policies administered by their sports governing
bodies. These contracts regulate an athlete’s performance by
placing restrictions in relation to key performance indicators,
off-field discipline and media commitments. Players failing
to adhere to standard expected of them can face financial
sanctions, suspension and even dismissal.
Where such formal employment arrangements exist between
a club and its players, an affected player would have little
difficulty in demonstrating that the club owed a duty of care
to its players.
In the context of the potential claims outlined earlier, a player
who has unwittingly engaged in a programme involving
prohibited substances could readily argue that their loss was
a foreseeable consequence of the club failing to properly
supervise sports science programme which it directed the
player to undertake.
Clubs may assert that they were unaware of the full scope
of the activities undertaken by sports scientists. However,
where clubs have turned a blind eye to questionable activities,
this conduct is vulnerable to being categorised as the club
implicitly sanctioning such programmes. Depending on the
state of knowledge of club officers, it is probable that a club
may be found vicariously liable for any breach of duty of an
employed or contracted sports scientist.
In view of the controversy generated by the Australian Crime
Commission Report and the associated liability issues discussed
in this article, the future could see the implementation
of a regulatory system for sports scientists, increasing the
accountability of sports scientists. A potential development
may be sporting codes taking the initiative and implementing
accreditation processes mandatory professional standards
for individuals seeking to provide sports science services to
various sporting codes. Such a development would be of
assistance to clubs seeking to demonstrate that they had taken
appropriate steps to verify the credentials of sports scientists
who they propose to engage to work with their players.
In view of the potential exposure discussed in this article, as
part of their risk management strategy, clubs should take the
following steps:
1.
Vetting the professional credentials of individuals
who they may be considering employing as sports
scientists through reference checks and verification of
employment and academic history.
2.
Actively monitoring the nature and content of their
sports science programmes to be able to demonstrate
that they exercised reasonable care to ensure that the
programmes did not involve questionable or prohibited
substances.
3.
Assessing whether the club’s insurance policies would
respond to potential claims by players alleging loss as
a result of the club’s sports science programmes.
THE FUTURE
RISK MANAGEMENT SUMMARY
PROFESSIONAL CLUBS