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Touchline issue 23 | April 2016 | 9
I
ssue 15 of Touchline (June
2013) discussed how a
sporting club involved in
performance enhancement
programmes involving
supplements or prohibited
substances could potentially be
exposed to the following claims by
affected players:
(a)
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 in the long-term.
(b)
Claims for economic loss by players
who were suspended for doping. Players
could potentially suffer loss of salary and
sponsorship deals and reduced earning
power due to their tarnished reputation.
In light of recent compensation claims
by professional football players affected
by their involvement in supplements
programmes, it is timely to revisit the
risk management issues associated
with sports science and supplements
programmes.
As noted previously, unlike health
professionals, sports scientists are
not regulated by the Australian Health
Practitioner Regulation Agency and are
not subject to the Health Practitioner
Regulation National Law legislation.
Consequently, for a club with an eye
on risk management, the absence of
accreditation by a regulatory body
makes it difficult for a club to assess the
credentials of a sports scientist working
with their players. The inability to vet a
sports scientist's credentials may hamper
the club's ability to persuade the Court
that it took reasonable steps to verify
sports scientist's qualifications before
engaging them to work with their players.
Given the regulatory vacuum in which
sports scientists operate, the claims
for damages made by affected players
demonstrates the importance for
clubs to satisfy themselves that sports
scientists they engage carry appropriate
professional indemnity insurance that
would respond to the claims described
above. As discussed in June 2013, in
the absence of such insurance, a club
could potentially find itself holding the
(liability) ball for the consequences of
the sports scientist's programmes or
recommendations.
Risk management summary:
The recent claims made by players
caught up in the Essendon supplements
saga highlight the relevance of the risk
management steps identified in Issue 15,
namely:
1.
Vetting the professional credentials of
individuals who they may be considering
employing as sports scientists through
reference checks and verification of their
employment and academic history.
2.
Verifying whether sports scientists
hold appropriate professional indemnity
insurance.
3.
Actively monitoring the nature
and content of sports supplements
programmes so as to be able to
demonstrate that they exercise
reasonable care to ensure the
programmes that did not involve
questionable or prohibited substances.
4.
Assessing whether the club's insurance
policies would respond to potential claims
by players alleging loss as a result of the
club's sports supplements programmes.