The scope of the duty of care in sport - A submission in relation to UK Government’s review
The UK Government, Department for Culture Media and Sport (DCMS), has asked Baroness Tanni Grey-Thompson to lead a review into the Duty of Care sport has towards participants.1 The aim is to make recommendations to government and its agencies on the establishment and content of a formal ‘Duty of Care’ to athletes and participants, in both elite and grassroots sport, with the aim of ensuring that as many people as possible can engage in sport and that they can do so in a safe way, with their career and life after their career supported.
This is a submission by Professor Jack Anderson and Mr Neil Partington, School of Law, Queen’s University, Belfast in relation to the DCMS’s duty of care review.
In its narrow, legalistic context, the identification of a duty of care is a preliminary step in establishing that a defendant has behaved negligently towards a claimant. In negligence actions relating to sport, where for example a participant has been injured due to the alleged fault of the sport’s organising body, the duty of care between the parties lies along a spectrum of one that is, in professional sport, almost contractual in nature; to one which in amateur sport is based on the assumption of responsibility.
In a contact sport, the primary duty of care of a sports governing body is to ensure that the game can be played as safely and skilfully as possible. The ripple effect of this is – in rugby union for instance – that the governing body has a duty to ensure that its scrum or concussion regulations are as reasonably safe as can be expected in order to best prevent or mitigate the associated risks. Compliance with, and the enforcement of, these regulations – by way of referees, coaches and medical personnel; means that such persons are captured by the scope of the original duty of care.
In the law of negligence, the key question in establishing liability is whether the defendant (e.g., a sports governing body) has breached the duty of care it owes to the claimant (sports participant). In assessing breach of the duty, the courts have long recognised the social utility of sport – in other words, the societal benefits associated with participation in sport and including risky, physically invasive sports and which may be deterred if exposed fully to negligence liability. This approach is expressly encapsulated in statute in section 1 of the Compensation Act 2006 and to a lesser, implied extent in the Social Action, Responsibility and Heroism Act 2015.
This brief paper takes a wider approach to the concept of duty of care and is based on that which can be found in the Scandinavian model of sport i.e., a duty of care to athletes and participants at all levels of sport with the aim of ensuring that as many as possible play sport for as long as possible and in the most supportive and safest environment possible.
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- Tags: Athlete Welfare | Australia | Compensation Act 2006 | Concussion | Ireland | Irish Law (Civil Law (Miscellaneous Provisions) Act 2011 | Negligence | New Zealand | Responsibility and Heroism Act 2015 | Safeguarding | Safeguarding Department for Culture Media and Sport | Social Action | United Kingdom (UK) | United States of America (USA)
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Jack Anderson is a Professor of Law at the University of Melbourne where he teaches criminal law, the law of torts and sports law.
Jack has published widely in the area of sports law and including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016. He is Honorary Member of the Centre for Sports Law, Sports Policy and Sports Diplomacy, University of Riejeka, Croatia and an external examiner at the University of Malaya.
An accredited workplace mediator and a Chartered Arbitrator, (CArb). Jack is an arbitrator on the international panel for Sport Resolutions UK and World Athletics’ Disciplinary Tribunal. Jack is a member of International Hockey Federation’s Integrity Unit and a founding member of the Asia Racing Federation’s Anti-Illegal Betting Taskforce. In Australia, Jack sits on the disciplinary tribunal of the Football Federation of Victoria and for Basketball Australia. In 2019, Jack was appointed by the Victoria government to the Board of Harness Racing Victoria. He is Vice-President of Gaelic Games Victoria.
From 2016-2019, he was a member of the Court of Arbitration for Sport and appeared on the list of arbitrators of the CAS Ad hoc Division for the UEFA EURO 2016 (European football championships). He was the sole CAS arbitrator at the Commonwealth Games in 2018. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission and was asked by the Australian government to chair the advisory committee to prepare for the establishment of a national sports tribunal. In 2020, he was appointed as a member of the National Sports Tribunal of Australia.
Neil is a Lecturer in Law at the University of Sussex. Prior to this, he gained his PhD and was a Research Fellow in Sports Law at Queen’s University Belfast. Neil has considerable experience in teaching and educational management and also holds an MSc in Sports Coaching.