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.
The differing dimensions of the duty of care
In discharging this duty of care, it is suggested that it must be seen in three dimensions:
- first and at the entry level, in preparing participants to play sport (a duty encompassing the roles of volunteers and coaches);
- second, in the actual playing of sport (the participant’s assumption of risk and responsibility and the role of the participant’s immediate support personnel from parents to agents); and
- finally on exiting the sport (and the duties of governing bodies and statutory/public agencies with responsibility for sport).
As regards the “duty of care” of a sports coach, it will vary enormously with the circumstances (for instance, the age/experience of the participants and the nature of the sport); nevertheless, the fundamental duty of a “coach” (loosely defined) encompasses a general principle that properly instructed and prepared participants will be inculcated with the necessary knowledge and skills on how to enjoy their sport safely, reasonably avoiding injury both to themselves and, where relevant, opponents and encompassing residual duties relating to general supervision; intensity of training; selection of injured players; proper use of safety and playing equipment; “standard practice”; and even the capacity to deliver emergency medical care.
As regards volunteers in sport, it is suggested the some consideration should be given to a statutory provision holding that a volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work. The model found in Irish law (Civil Law (Miscellaneous Provisions) Act 2011 should be considered. The protection from personal liability conferred on a volunteer by Irish law does not apply to any act done by the volunteer if:
- the act was done by the volunteer in bad faith or with gross negligence, or
- the volunteer knew or ought reasonably to have known that the act was outside the scope of the voluntary work authorised by the volunteer organisation concerned, or contrary to the instructions of the volunteer organisation concerned.
In realising the duty of care as broadly stated in above, a dedicated sports capital programme should be considered permitting voluntary and community organisations and sports clubs to apply for funding to invest in safety equipment for their sports facility such as defibrillators.
As regards injury in sport, the emphasis should be on a “preventative” duty of care. It follows that the identification and recording of injuries during sport (such as concussive events) is the first critical step as this helps optimise injury management and facilitates more accurate injury surveillance studies. Given the nature of our civil law system in the UK, we have difficulties in sustaining a centralised accident/injury surveillance system as can be found in New Zealand; nevertheless, a simple measure whereby referees at all levels of sport are required (briefly) to report injuries in their match report would assist in the maintenance of a sports injury database. This could be piloted in one sport such as rugby union.
The approach to injury in sport should also be similar to the recently adopted governmental approach of “learning not blaming”2 as adopted by the NHS recently and which has led to the creation of an independent accident investigation branch within the NHS. This approach was influenced by the work of sports journalist and author Matthew Syed (Black Box Thinking)3 and could be usefully adapted to sport e.g., the lessons that can be learned from the poor medical screening of footballers and which lead to litigation such as Hamed v Mills and Spurs.4 Such an approach would also satisfy the courts’ demand that risk assessment in dangerous sports must be “dynamic”.
With specific regard to concussion, it must be noted that most states in the US have adopted youth sports concussion safety laws applicable to their school state system and as based on the Zackery Lystedt Law of Washington State.5 The key provisions of the Zackery Lystedt Law are noted and, although not directly “translatable” in terms of the UK, some points as regards a possible regulatory framework are noteworthy:
- Guidelines/education: Calls for school districts board of directors and state interscholastic activities association to develop concussion guidelines and educational programs.
- Mandatory consent: Requires youth athletes and a parent and/or guardian sign and return a concussion and head injury information sheet on a yearly basis before the athlete’s first practice or being allowed to compete.
- Immediate removal if concussion suspected: Youth athletes suspected of having sustained a concussion in a practice or game must be immediately removed from competition.
- Written clearance before return to play: Youth athletes who have been taken out of a game because of a suspected concussion are not allowed to return to play until after: being evaluated by a health care provider with specific training in the evaluation and management of concussions and receiving written clearance to return to play from that health care provider (this does not strictly bar same day return to play).
- Legal immunity: A school district complying with the law is immune from liability for injury or death of an athlete participating in a private, non-profit youth sports program due to action or inaction of persons employed by or under contract with the sports program if: the action or inaction occurs on school property; the nonprofit provides proof of insurance, and the nonprofit provides a statement of compliance with the policies for management of concussion and head injury in youth sports.
As regards child protection and safeguarding in sport, it must be remembered that the UK has one of the most sophisticated dispute resolutions systems globally for such a sensitive matter in the form of the National Safeguarding Panel (NSP) run by Sports Resolutions UK. NSP is not intended to replace the need for sports governing bodies to establish their own policies, procedures, and systems for dealing with child safeguarding complaints and concerns. Nevertheless, it is suggested that the benefits of NSP, and the NSPCC Child Protection in Sport Unit integrated Case Management Model for safeguarding complaints and concerns, should receive better promotion.
As regards racial, ethnic or sexuality based discrimination, it is suggested that sports bodies give greater consideration to the adoption of racial and religious disciplinary process which place at their heart a restorative justice programme for offenders and is human rights driven. At present, disciplinary process are adversarial in nature e.g., recent comments by rugby player Joe Marler; and the better approach may be a conciliation process as has been the case in the Australian Football League for 20 years.
As regards doping in sport, the approach has tended to be about the athlete’s strict liability or fault. It is suggested that the greater use and awareness of the vicarious liability of the athlete’s agent, support personnel and governing body might be a more effective deterrent.
Integrity Guidelines for Directors and Leaders of Sporting Organisations should be drafted along the lines recently adopted in Australia.6 The Australian guidelines note, rightly, that an effective integrity framework should include: anti-doping policies and education initiatives; illicit drugs policies and education initiatives; match-fixing policies and education initiatives; sports science sports medicine (SSSM) principles, and member protection (specifically complaint handling and child protection measures).
Support for those with issues relating to, for example, alcohol and gambling should include a conversation about the restriction of the advertising of such products in sport and as surrounding the broadcasting of sport.
Support for those entering/exiting talent pathways can be allied with the EU Commission’s view of, and policies on, “dual careers”7 in sport.
Consideration should be given to the role of a Sports Ombudsman for the UK (outside of the football ombudsman). The United States Olympic Committee has an Athlete’s Ombudsman whose role is to provide free and independent advice to athletes and can direct athlete’s (in a Citizens’ Advice manner) to the appropriate source of information and assistance. A Sports Ombudsman can be an effective, anonymous, independent and less adversarial means of reviewing and processing complaints about, or integrity issues in, sport and can build up a level of investigatory history that can usefully applied to all sports to prevent disputes.
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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 Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.
Jack has published widely in the area 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 with R Parrish and B Garcia). 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.
Appointed as an arbitrator to the Court of Arbitration for Sport in 2016, he became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017. In 2018, he was the sole CAS arbitrator at the Commonwealth Games on the Gold Coast, Australia. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for 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.